¶1(concurring specialty)-
¶2I concur in affirmance on the ground it cannot be error to omit instructions which involve nonexistent issues of fact. Lundin v. Stratmoen, 250 Minn. 555, 85 N.W.2d 828 (1957).
¶3(dissenting).
¶4I would reverse and adopt a rule that in a case of a minor under the age of 7 years, an instruction be mandatory that the child not be negligent as a matter of law. To allow it to be discretionary on the part of the trial judge whether to give or not to give such an instruction will, in my opinion, result in confusion and chaos in the law. Some judges may give such an instruction as a matter of course while others might always refuse to give it. Here, clearly the instruction is warranted where the child is only 2 years old. In absence of such an instruction, the jury will, and undoubtedly did in this case, speculate whether the child is to be deemed negligent or contributing to the accident when in fact the only issue it should decide on liability is whether the driver was negligent.