*1 August 2, trial a new Argued April 4, for and remanded reversed 5, September rehearing petition denied SALES, Appellant, AUTO STEVENS v. BAILEY, Respondents. INC. al, et 512 P2d 1330 *2 argued the Medford, cause for Clmkinbeard, Karl appellant. him on brief were Holmes, the James With Clmkinbeard, & Medford. argued

Hugh Collins, the cause for Medford, B. respondent Auto him on Stevens Sales. With the brief Ferris Velure, & Medford. Collins, Deatherage, argued Medford,

W. V. cause for respondent him on the Smoot. With brief were Frohn- Deatherage, mayer Medford. & HOLMAN, J. brought damages an action for resulting injuries allegedly personal by

from caused defendants’ judgment negligence. A was rendered for defendants pursuant appeals. to a verdict. Plaintiff process shopping In the for an automobile plaintiff entered the showroom of defendant Stevens for (Stevens). salesman Stevens A

Auto Inc. Sales, separated the showroom door which escorted her to a department. It was the salesman’s from service through plaintiff de- the service intention to escort partment inspect which was outside the a vehicle go get building. plaintiff to left The salesman plaintiff key disputed had whether to the vehicle. It is through doorway depart- passed into the service get key. her to ment at the the salesman left time doorway stepped through event, right department and then to the service by doorway, being which was used others, clear the for salesman. while she waited As waited parked pickup the front of a stood between truck department. wall the service truck had been left defendant with the Ste- repair. Upon vens the defendant Smoot return- ing employe for the vehicle was directed Smoot an depart- drive truck from the Stevens to service *3 employes busy. as the ment Stevens were Smoot entered the truck and activated the starter while the gear. was in As result, truck a the truck for- lurched pinning plaintiff between the ward, front of the truck injuries and inflicted the wall, and for which she recompense. Both seeks and the defendant deny they presence were aware of Smoot of other. alleged complaint in her the de- negligent parking was

fendant Stevens in the truck failing gear, emergency to set the failing in brake, to department, vehicle from the drive the service and in leaving plaintiff place in a warning safe not or her of dangers present in the service area. Plaintiff al- leged that negligent the defendant Smoot was in gear, in starting and while it her vehicle maintaining of her and control for lookout a contributorily alleged plaintiff was defendants car. The standing in keeping lookout and being and: moved, it was while of the vehicle front assuming knowingly voluntarily “In by being the being area of in the service where vehicles Auto Sales Stevens moved.” allegations of con- other made

The defendant Stevens duplicative tributory negligence either which were appeal. to or immaterial mentioned those assignment pro- of error relates The sole following giving priety of the instruction on assumption of risk: person that a are instructed said “You freely, voluntarily person risk when the

assume a and knowingly dangerous assent manifests an or or to the creation maintenance conduct dangerous self voluntarily exposes conditions her- danger, person when the knows to that the conduct or conditions of exists in either another operation property use or condition, or in the and voluntarily places or themselves remains danger. the area within person thus assumes risk is “A who en- damage to recover caused them titled which dangerous condition from the or resulted conduct they voluntarily activity exposed to which them- selves.” exception following was taken to the instruction: except to Instruction further No. 6 “We gave upon the Court based Franks

is the versus Oregon tendered Smith, De- *4 assumption on of risk Stevens which we fendant believe contributory an element and of to be 398 separately in- not have been and should by

structed the Court.” “pri in a assumption used of risk The term Harper “secondary” James, mary” 2 sense. or a primary (1956). sense § its of Torts 21.1 The Law submitting risk one’s self to the it refers to duty no other owes where the another in situation negligently in does not therefore, act and, player injury. example is inflicting where a An is playing injured within who is another football at Co., 26C, Malheur v. Sch. Dist. (1962). the rules. See Vendrell Smith, Franks v. Also, 376 P2d 406 1, 233 Or secondary (1968). In its sense P2d 954 251 444 98,Or submitting knowingly assumption refers of risk dangers negligent acts. of another’s self one’s Square Thayer Clubs, Dance v. Fed. Ore. See (1971), al, et and Ritter v. Beals P2d 717 302, Or secondary (1961). In its sense P2d 1080 504, 225 Or contributory nothing assumption than of risk is more negligence. analysis

Following it is clear that above allegation plaintiff’s present defendants’ case nothing general risk was more than a allegation non-specific con- alleged tributorily negligent. speci- it was Indeed, contributory negligence. fication plaintiff’s exception pointed out in to the in As upon assumption instruction if an struction, assumption of risk is given used in its when secon upon dary an instruction sense defendants well, secure a double following issue. on the same instruc contributory negligence already had been tions *5 prior on instruction objection made: which prevail on in order for the Defendants to “Now, part contributory negligence on the their claims by prove preponder- a of the Plaintiff must that the Plaintiff was ance of the evidence respect charged in Defendant’s at least one proximate cause of answer’s which was a damage may the Plaintiff suffered. have ^[*] ^[*] ^[*] ^[*] something

“Negligence doing a which reasonably prudent person would do or the reasonably something prudent failure to do person would do under circumstances similar those shown the evidence. ordinary

“It is to use or the failure reasonable care. “Ordinary or care reasonable is that care which

persons ordinary prudence would use order to avoid an cumstances to themselves or others under cir-

similar to those shown the evidence. person “You will note that the whose conduct up extraordinary set we standard is exceptionally cautious nor individual, skillful person ordinary one, but a reasonable prudence. contributory negligence “Now, combining of a Plaintiff neg- which, with a ligence any, of if Defendant, contributes proximate bringing injury. cause in about you as I “Of course have instructed a contributorily negligent who is cannot recover for injuries. such Mb ^[*] # ^[*]

“You are instructed that an invitee not re- cover if she acts unreasonable in encountering the having reasonably encountered the clanger due care thereafter fails to exercise safety.” ‹

her own contributory negligence upon ade challenged quately and the advised the supra given. Ritter Beals, v. See should have been at 520. opinion point Brown, v. to our Studer

Defendants following (1966), in which the P2d 509 24, 244 Or given: instruction was “ *6 you you if should find ‘I that even instruct negligent them, or either of were

that defendants, negligence, any, proximately if and that caused the tiff find either that he their plain- injuries plaintiff, to nevertheless you permitted to recover if should would not fully and con- may realized the risk sciously or while he it, that encountered exposing him- the involved in realized have to he failed exercise the care condition, self to intelligence experi- age, of his and children which pro- required to exercise their own ence are (Emphasis supplied)” 244 at 27. tection.’ Or 12-year-old boy played who with was a some injured. ap- explosive court chemicals was following language: in proved the instruction jury simply assumes “This instruction that point determining that defend- has reached alleged plaintiff’s com- ants were proceeds plaint, to then instruct on the duties regard plaintiff as a child in to of the recovery.” negligence bars at which Or 27. merely emphasis, Perhaps a matter of it but ‹ These to are set forth demonstrate that all an any way necessary which were instructions understanding contributory negligence. application of It question duplicative that the instruction all claimed not of them. explanation in con- terse of what constituted Studer tributory negligence part boy contrasts sharply present with instruction in ease which purport labors the matter and does not use it explanation contributory negligence as an of a kind of particularly applicable to circumstances. The un- aggravated by fairness is the instruction’s failure to jury “assumption inform the of risk” as it was being negligence concept. then used was appear The two instructions as if concerned in- dependent non-related matters.

The defendant Stevens contends that there is no evidence its which was a cause of the accident. There is evidence sufficient for the through employe find that Stevens, its the salesman, took dangerous to and left her unattended in a area and was a cause without which the acci dent would not have occurred. We, therefore, believe there was sufficient evidence of defendant Stevens’ go jury. to the

Stevens also contends was contribu torily negligent as a matter of law because she waited department, in the service stood between the front *7 a vehicle wall, and failed to see the defendant get Smoot plaintiff in her vehicle. While admitted that being she knew that cars were moved around, this court say department cannot gerous that the service was so dan guilty

that was remaining matter of law in there. jury addition, person could found have that a prudence reasonable who had never been in department a service before expected should have been to realize the full extent danger. say Neither can we contributorily negligent as a matter of law because she parked or failed because

stood in front of vehicle a to start her was about Smoot to notice defendant jury. for the These matters car. were judgment court is reversed of the trial The new trial. is remanded a case dissenting. J., O’CONNELL, C. majority opinion there was concludes

The duplicative in- there reversible error because disagree. it be noted that I should First, structions. judge as follows: admonished trial or rule, direction “If in these varying ways, repeated or no em- idea is stated phasis none me and thereon is intended must by you.” inferred terms of

The instruction risk was as follows: person is said “You instructed that are voluntarily freely, person a risk when the assume manifests, dangeous knowingly an assent

and conduct dangerous or or creation maintenance of to the voluntarily exposes her- conditions and danger, person knows to that when the self or the conduct condition another exists in either operation property or condition, in the use or voluntarily places or within themselves remains danger. area person who thus assumes a risk is not en “A damage to recover for caused them which titled resulted dangerous or condition from the conduct activity they voluntarily exposed to which thems elves.” ‹ ‹ “Now, continued as follows: a Plain instructions then eontributorily negligent injured and who was tiff who was proximate some conduct on of a result of compensation recover for such from is entitled to Defendant that Defendant. 303) (Continued page *8 majority opinion instruc- out various other sets duplicative. I have iden- tions which court deems separate parts tified the of these instructions later reference:

(A) prevail in order for Defendants to “Now, negligence their on the claim prove by preponder- of the Plaintiff must negligent ance of the evidence that the Plaintiff was respect charged in at least one Defendant’s proximate which answers was a cause dam- age have suffered.”

(B) “Negligence doing something is the which a reasonably prudent person would do or the something reasonably prudent failure do person do would under circumstances similar to those shown the evidence. ordinary

“It is failure to use or reasonable care.

“Ordinary or reasonable care is that care which persons ordinary prudence would use in order injury an to avoid to themselves or others under circumstances similar to those shown the evi- dence. person “Ton will note that the whose conduct up

we extraordinary set standard is not the exceptionally cautions individual, nor skillful person ordinary one, but reasonable prudence.” (Continued page 302) from “Therefore Plaintiff in this action is entitled a verdict you my find instructions, case if in accordance with first, negligent. the Defendant was or one them in fact Second, proximate that such awas cause of the third, to the And neg- Plaintiff. that the Plaintiff was herself not ligent or if that her did not contribute as a injuries.” proximate cause to her own (C) *9 contributory negligence is “Now, combining part with a as a which, the negligence of a any, if contributes of a Defendant, injury. bringing proximate about the cause you a Plaintiff as I have instructed course “Of contributorily negligent cannot recover iswho injuries.” such (D) an invitee “You are instructed (sic) in encounter- if acts unreasonable she recover reasonably danger having ing encountered to due care thereafter fails exercise safety.” own for her that none the fore- in mind be It must borne prejudicial going unless are not are instructions empha- repetition only duplicative their undue but plain- upon put which is detrimental an idea to is sis tiff’s case.

(A) (A) designated purports under instruction weight proof explain and the burden who has the to allegation necessary prove of con- of evidence explained negligence. tributory is This elsewhere and therefore I see how the do in the instructions duplicative. Certainly, majority describe this as can “contributory negligence” in mention the mere regarded as harmful. cannot

(B) complete why loss to understand at I am a duplicative majority instructions select those would (B). These appearing are standard under instruc- generally. There no mention of tions on negligence. can be criti- these How, then, repetitiveness? cized for

(C) simple (C) statement we have Under causally negli- contributory negligence connected gence plaintiff. I fail see how on the assump- duplicates anything in the instruction on said majority opinion. first set in the tion out (D) (D) Then we come to after sixteen lines which, duty relating possessor’s an was followed the instruction on invitee, *10 (D) speaks of risk referred above. to Note that manner in which the invitee encounters the risk and assumption explains on the instruction of risk what voluntary assumption constitutes a of risk and the consequence jury know thereof. All of this the should duplication I no about. see of it. allegedly to

It seems that of dupli- me each these expresses cative instructions a different idea and that overemphasize therefore do not an idea unfavor- plaintiff. majority opinion able to The represents a highly application technical of the law which forces the unnecessarily trial the defendant to retry court a case.

It is to be observed majority that opinion the say improper that does not isit to language use the “assumption giving of risk” in an instruction on con- tributory (now commonly referred to as assumption secondary of risk in sense), the nor does opinion find fault with the the leaving instruction for assumption of risk the whether

it uncertain as to is intended. › secondary primary sense or in the given in assumption of risk on The instruction ground subject present to criticism the case is majority opinion. instruction mentioned unreasonable, assumption of the of an in terms cast necessary to character- course, would which, negligence. contributory plaintiff’s With- as ize conduct might regard jury qualifying instruction out so meaning if barred would be that as it voluntarily her conduct was whether assumed the risk exception taken But the or unreasonable. reasonable ground even if was not on to think the instruction on un- been, had I it encountering I have set reasonable and the instruction set out in the out in the text above margin plaintiff would be entitled a verdict apprise only are if sufficient she was recovery theory on which is based. suspect that a of the confusion which we I “assumption that the term of risk” is under is labor ways: (1) ifas the term different describes used in two simply descriptive legal theory, (2) if it were situation where encounters of the factual danger. If the term is used in the first known sense, improper sepa- it it with the then would be confuse theory negligence. legal On the rate if risk is other understood hand, description, appropriate it would be factual *11 assumption of the ureasonable a known describe risk › Franks 98, Smith, (1968) P2d 251 Or v. holds that primary assumption secondary risk both its oí where senses jury proper language the is instruct at issue it is holding present Whether case. this was used in in Franks is present no concern. correct majority contributory negligence. that the I assume as usage. acceptable opinion latter finds joins in this dissent. J., Denegre, dissenting. HOWELL, J., agree majority the defense

I with assumption facts in this case under the neg- nothing allegation of more than an ligence allegations of contribu- the same as the other tory negligence in the defendant’s answer. contained As it should treated the instructions in the such be ordinarily manner as court instructs on con- same negligence. tributory agree majority

I with case do relating must reversed because the instruction duplicative of risk was of other instruc- contributory negligence. tions on place, agree dissenting I the first with the opinion of Chief Justice O’Connell that the instruc- duplicative tions were least at to the extent that they placed emphasis upon undue defense as- sumption allegation contributory neg- of risk an as ligence plaintiff. therefore detrimental judges conscientiously confident that

I am trial giving attempt jurors to avoid instructions to in such or form manner that the instructions could be inter- preted emphasizing charges certain contributory negligence. judges For this reason trial ordinarily general include a instruction that the should consider instructions as a whole and single attempt particular out a instruction for special consideration. Such an instruction was in this case. *12 difficult extremely I that it believe

Moreover, to decide that court for this as an court appellate em- are unfairly the trial court instructions given by instances In some other instructions. phasized by allegations contain more of one pleadings party than negligence of the circumstances because pleadings opposition’s most Also, may develop case. it particular or contributory allegations one party’s stricken before the case submitted negligence are very clear it would have any event, the jury. court, from an examination case before say that record, affirmatively could on a of the case that unfair placed emphasis such were detri- instructions, whole, considered I do not party. to the know opposite mental has the trial court decision where this court reversed do I would not so this case. reason. J., also this dissent. joins Denecke,