¶1 concurring in judgments: I do not concur in the proposition that failure of the trial court to charge on the question of contributory negligence when raised by the evidence is an error of omission, which is waived by failure of counsel to request such charge.
¶2 The statutory requirement is that the court must charge on the issues made in the case. That contributory negligence is an issue has been definitely decided under tile two issue rule decisions.
¶3 Such charge is particularly important in the instant case, No. 5172, on the question of damage. Damages are assessed to those who suffer a pecuniary loss. If plaintiff was guilty of contributory negligence she, *22 the widow, could not be considered in fixing the amount of damage but her negligence would not defeat recovery by the other dependents. It was, therefore, quite important that the jury should have been told the law applicable in order to properly fix the amount of damage, if there was substantial evidence of contributory negligence on the part of the widow, the driver of the automobile.
¶4 ■ However, I have read the evidence, and do not find any substantial evidence of contributory negligence on the part of the widow, and, therefore, concur in an affirmance of the judgment in both cases.