*1 behalf, testify own fit to in his obligated testimony.

was not to believe his MOORE, Paul T. Plaintiff Respondent, points Defendant to the lack of direct testimony opera- the automobile was at its theft. tional the time of Inasmuch as BURTON LUMBER & HARDWARE .was uncontradicted automobile COMPANY, corporation, p. was stolen between 8:00 and 10:80 m. and Appellant. Defendant and being was observed driven into defendant's No. 16672. p. evening, shed at 11:80 m. on the same liberty to Supreme was at infer it was Court of Utah. operational at the time of the theft. May only

Defendant also contends connecting

evidence him to the theft was possession recently stolen automo However,

bile. the record contains other evidence,

corroborative the least of 1) following:

which is the defendant's own

explanation 2) possession, of his his conceal partial

ment of the automobile and disman

tlement, 8) ownership his false claim of title, 4)

evidence of his admission to

Detective Leonard of his

the automobile was stolen.14 judgment

The conviction and are af-

firmed.

HOWE, J., GOULD, and CALVIN Dis- Judge,

trict concur.

STEWART, J., concurs in the result.

MAUGHAN, J., participate C. does not

herein; GOULD, Judge, District sat.

CROCKETT, J., arguments, heard the opinion

but retired before the was written. Kinsey,

14. See State v. 77 Utah 295 P. 247 Thomas, State Utah *2 Jensen, Berry,

Raymond M. Brucett Salt appellant. City, Lake for defendant Hansen, Ralph Dewsnup, Eugene L. W. respon- City, Lake for Salt dent.

STEWART, Justice: judgment appeals from a Defendant special verdict based on personal injuries liable for found defendant by plaintiff operating while a ra- sustained prem- on business dial arm saw defendant's ises. two-year period,

During approximately 1975, plaintiff May su from June 1978 to building project for Deal pervised large ("Deal") Company in Development Salt open account with City. Deal had an Lake charging which was used in defendant project.1 purchased for the hardware items 1, 1975, May Shortly before noon Prince, Buddy a fellow and one tain"), blocks from away several of state and 1. Deal's lumber was out purchased ("Intermoun- business premises. stored at Intermountain Lumber Deal, employee way, moving drove to defendant's out premises pickup up gauge repeat process. business nail purpose buy procedure following was to some This approximate- truck. Their permission ly items and to ask seven to nine times. hardware radial arm saw to cut sever use defendant's cutting When he finished the first two- two-by-fours into to be al blocks used *3 by-four, plaintiff pushed the saw back to its air-conditioning enclosing ducts. While position return and went to the end of the items, gathered plain the hardware Prince get two-by-four. table to the second He permis to seek tiff went to the front desk two-by-four took hold of the second with to use the radial arm saw. There is sion along both hands and moved it the table in conflict in the evidence as to substantial one-by-four front of a which served as a transpired.2 what thereafter guide. momentarily Plaintiff directed his apparently spoke with gauge Plaintiff defend- attention to the nail on the table to manager quoted plaintiff it, ant's office who a make sure the abutted when saw, price per cut for the use of the but no suddenly the saw cut his hand. Before he price agreed upon. saw, pull away set Plaintiff testi- could his hand from the fied that thereafter him to fingers someone told thumb and his index and middle yardmen right severed, check with the and that if the saw his hand were and his re- used, being right maining fingers was not it would be all for severely two were cut. him to use it. There is no evidence that the blade of the through saw cut the board and then into yard Plaintiff went and told out into fingers, plaintiff or that either yardman by the name of Jessie that he manually pulled cutting posi- the saw into a given permission had been to use the saw. tion, or that he moved his hand into the shed, plaintiff the saw where Jessie led saw, speculated by as is the dissent. Nor is give six-pack plaintiff offered to Jessie there evidence manner change the beer if he would blade before plaintiff placed his hand on the board was plaintiff got back from Intermountain improper. with the lumber to be cut. Jessie Lumber allegedly agreed, plaintiff testimony and Prince at trial included evidence they where then drove to Intermountain the radial arm saw had been in use on picked up two-by-fours they planned premises thirty years for over they sign eut into Plaintiff without was a blocks. claims accident. There they bought stopped hanging opposite at a small store where on the wall the saw which letters, promised They large yellow the beer to Jessie. then read in "For Use of premises Operator Only." returned to defendant's business Authorized Plaintiff testi- through gate. having experience operating entered the back fied to had saws, and, although he admitted that Plaintiff entered the saw shed and no- are, nature, very their ex- such saws ticed that the saw had been reset from the tremely dangerous, he he was claimed com- position ripping position. to the cross-cut petent operate the saw without in- length then he wanted to He measured struction or assistance. cut and drove a nail into the table for use saw was gauge as a so that he would not have to The evidence indicated that guard a hood which serves to separately. equipped measure each cut Plaintiff with produced two-by- control direction of the sawdust started the saw and cut the first wood; designed by placing against by cutting four its end the nail it is not to be a gauge, pulling safety guard could be rotated down the saw toward him and it, returning knocking Plain- against then the cut block most thicknesses of lumber. verdict. Bank for Berkeley Cooperatives 2. Defendant and its employees dispute plain- permission (1980); Rodgers tiff's that he received to use claim Meibos, Utah, Hansen, Utah, the saw. For of this we the purposes appeal, light view the most facts favorable one instruction informed the guard that because the hood expert testified that tiff's to warn licen- guard, jury that there no adequate blade was not an dangers, the failure to operator sees of obvious designed guard prevent respect with to invitees such an instruction with the coming into contact the saw from erroneous- led the to believe for standards saw blade. International warned ly should have guards per- that defendant guards require that such blade dangers. Defendant to obvious as inch clearance between mit no more than % erred in the trial court table also claims that guard and the saw the bottom of the the defense of as- failing to instruct on exposed. if the the blade is Even when refusing to submit risk and in down, sumption guard rotated once hood were finding in the jury for a that defense to the clearance between lumber was cut the special verdict. the table would guard bottom of Thus, inch. even had exceed % certain risks which There are of course guard down so rotated the hood *4 ap age must be taken to anyone of adult cut,. being contact the would Ogden City, 123 Utah preciate. Wold v. plain- prevented guard would not the Prosser, (1953); Handbook 258 P.2d 453 being the drawn into blade tiff's hand from ed.) (4th p. 61 see the Law of Torts § saw. of the long held that p. 68 It has been also § obligation to warn addition, expert property testified a owner has no plaintiff's dangers known to equipped invitee of which are question was not the saw in that which are so obvious and spinning blade the invitee or system prevent with a may reasonably expect be posi- apparent that he creeping from its rest from forward specifically them. Defendant large creep will ed to discover spinning A blade tion. restrained, supported its me- that the evidence it either contends forward unless is theory dangers were obvious and gravity. In a mechanical that chanically duty had no spring pulley and that the defendant therefore system a or a restraint dangers. plaintiff maxi- warn of such weight system holds the blade in the same result position. The mum rearward of this Under the circumstances simply tilting the front can be obtained should have instructed that there trial court gravity keeps slightly so that of the table was no to warn an invitee of obvi position. In the proper in the rest the blade any possi danger ous so as to have avoided plaintiff's expert, the lack of opinion of misunderstanding. v. Denver & ble Steele restraining guards a blade proper blade Company, Railroad Rio Grande Western question "defec- system the saw rendered see also Utah 2d unreasonably dangerous." tive and Dansie, Utah, 576 P.2d 867 Ellertson finding was returned special Nevertheless, . A verdict the failure to do so but, negligent, plaintiff and defendant both was harmless. plaintiff's jury also found significantly, specific that There was no evidence negligence not to have been a cause dangers for which the defendant could be plaintiff that injury. jury also found which could have responsible held and not a licensee or was a invitee business injury-the lack of certain blade caused the damages in the trespasser assessed creeping guards and the of the saw-were $144,892. The court entered amount of hazards as to be such obvious and common against judgment defend- in that amount plaintiff's layman or one with apparent to a new trial motion for a ant. Defendant's background. The evidence which did relate denied, appeal followed. was and this danger of the saw to the obviousness of appeal danger went inherent rather than the claim on is to its Defendant's first dangers by the lack of specific erred in created prejudicially the trial court tendency guards and the of the saw refusing jury that there is no blade to instruct defects, creep As to these of an obvi forward. duty to warn a business invitee testimony the saw argues expert there was danger. Specifically, defendant ous unreasonably dangerous. was defective and Mitchell Funeral Serv., Home Ambulance testimony creep- But there was no ing was obvious to one in shoes or The next issue arises out of the trial plaintiff knew or should have court's refusal instruct on as- availability known about of the blade sumption of risk. Both and de- guards. proposed fendant submitted instructions on judge's the issue. The rationale for his special In answer interrogatory, to a ruling was as follows: jurors specifically found that negligence case, I think it is negligent, but that is what proximate case. I injury. not a cause of the On ought think the hand, instructions to be the other limited specifically found that, excluding assumption of the risk negligent that defendant was and that its which, comparative negligence, under proximate negligence was a cause of the comparative [contributory] negli- injury. accept theory To genee. injury resulted from the failure to warn danger or correct an obvious would result in Undoubtedly, ruling in so the court had in finding plaintiff's negligence was a (1953), mind pro 78-27-37 U.C.A. § proximate injury-in cause of the direct vides: jury's with the finding proxi conflict Contributory negligence shall not bar re- mate responses cause. The covery by any in an action person or his special interrogatories only are consistent legal representative damages recover *5 proposition injury the the resulted negligence gross for negligence or result- Therefore, danger. from a nonobvious be ing injury in death or in person or special cause a interroga answers to property, if negligence was not as must, possible, tories if at all be read har great negligence as gross negli- the or moniously, Water Weber Basin Conservan gence person of the against whom recov- Nelson, cy Dist. v. 11 Utah 2d 358 P.2d ery sought, any damages but allowed Betts, 81 Van Cleve v. 16 Wash. shall be diminished proportion in the App. (1977), 559 light and in the of amount attributable presumption of the the followed person recovering. As used in this instructions, reject we must act, "contributory negligence" includes theory. Clearly, instructions, under the "assumption of the risk." plaintiff's negligence could have found With time it has become clear that proximate cause chose not to do so. assumption of risk defense in fact included sum, although In Instruction 22 did not at least legal concepts. three different See duty state that defendant had a Jacobsen Construction Co. v. Structo-Lite to warn of dangers,3 obvious the error was Inc., harmless Utah, Engineering, because there was no "reasonable likelihood (1980), and authorities there cited. One ... ... there would have been a re assumption form of of risk has been re- sult more favorable" to defendant had the primary assumption ferred to some as of instruction requested. Rowley risk, been as v. expressed be either im- Co., 448, 451, Graven Bros. & 26 plied. Utah 2d "primary express" form involves 1211 agreement by See also Lee v. accept an given including Instruction No. 22, which was the radial arm thereon, saw in a court, stated: condition safe for con- reasonably purposes there; sistent with his and to warn presence If find you aby of the evi- preponderance any dangers involving him of and all injury, that, dence at the time of his Mr. of operation said saw which were known Moore invitee," was defendant's "business as should have defendant or become known hereinafter, term is defined then defend- in the defendant exercise reasonable ant's to Mr. Moore was to duty refrain from diligence performance of reasonable acts of him; toward to exer- keep premises, cise reasonable care to inspections. 870 whether a rea tion should be focused on "primary implied" danger, and the

risk or exercise of prudent man in the sonably which de relationship in form involves risk, incurred the would have care to the due care no simply owes fendant it, so, and if despite his assumption of risk Secondary plaintiff. himself would have conducted encountering of whether he stated, unreasonable as plaintiff acted in which the reality and in in the manner appreciated a known and surrounding circum negligence. light of all the aspect Ass'n, stances, including appreciated risk. Strawberry Water User's Rigtrup v. Alaska, 443 P.2d Gillaspie, Leavitt v. (1977); Jacobsen Con See 1247 P.2d 563 Then, if unreason Engineering, Co. Structo-Lite struction than that of viewed to be less ableness is Inc., supra. defendant, according to the terms assumption of risk and contrib Both statute, damages allowed shall be "any unreason negligence are founded on utory proportion to the amount diminished in concept on a focuses Each able conduct. person re negligence attributable in the unreasonableness aspect of different covering." omitted.] [Footnote plaintiff's failure A of harm. face of a risk arising from light of the difficulties per danger which a reasonable to foresee assump- meetings of the term several prudent manner would acting in a son risk, advocat- authorities have some tion designated negligent conduct. foreseen is the term "as- complete abolition of ed the designates conduct of a of risk Assumption and the utilization sumption of risk" unreasonably takes a known person who __ terminology to describe the con- risk. appreciated legal other James, Law of Harper duct. See risk, that term is Assumption of as (1956); Flemming, Torts 21.8 at 1191-92 § 78-27-37, voluntary and is a used § Torts, (2nd 1961). We 241-58 ed. Law of danger. exposure to a known unreasonable agree. Company v. Structo- Jacobsen Construction Rigtrup maintains Defendant Inc., supra. The com Engineering, Lite Ass'n, Utah, 563 Strawberry Users Water negli recovery in action for plete bar to (1977), held P.2d risk has been gence, which *6 recovery. complete bar risk is still a by the Utah historically, been lifted has assumption of risk part of to avoid the Insofar as that negligence statute comparative negli aspect result which is an of upon plaintiffs as a visited harshness concerned, did not so is that case all-or-nothing gence nature of the former there assumption Rigtrup recognized that "where Secondary of hold. law.4 rule of danger, risk of which is manner as contribu a known treated in the same is is appor action purpose voluntarily by party, such tory negligence for the assumed negli comparative lack of due care tioning may fault under the well fall within the Strawberry gence Rigtrup negligence v. and also statute. which constitutes Utah, Ass'n, 563 P.2d assumption Water User's of risk." correctly be termed an two (1977). relationship between the The Court referred P.2d at 1250.] [563 Jacobsen Con concepts explained "contributory in statutory language that Engi Company assumption struction v. Structo-Lite un of risk" negligence includes Inc., neering, supra at 312: negligence statute and comparative der the "indicates a clear the statute plaintiff's con stated that ... the reasonableness recognize the doctrine legislative intent confronting a known or unknown duct in aspect of con 'assumption of risk' as risk created defendant's negligence in Utah law." princi tributory under basically [Ibid.] be determined will assumption risk should be The Court held contributory negligence. Atten- ples of plaintiff's Ingersoll-Rand Comparative principles and Co., Utah, as to Mulherin cases. 628 P.2d 1301 causing injury in personal defendant's liability liability recently apply in strict were held to treated in a manner as an as- Defendant's final claim appeal is pect contributory negligence. Neverthe- that jury should have been instructed less, approve giving the Court did that, law, as a plaintiff matter of negli assumption instructions on both of risk and gent and that was the sole contributory negligence. cause of the injury, or alternatively that though Even ap decided after proximate was a cause of the injury. The peal in this principles governing court correctly refused to the instruc the relationship contributory negligence Clearly tion. there were factual issues both assumption of risk enunciated in Jacob- as to negligence on the parties of both sen controlling are here. Since and as to the injury, cause of the and we consequences of a obliged are to sustain the findings breach explained thereof were to the because there was substantial evidence in appropriate language, there was no error support record to findings. those Malt giving in not secondary instruction on Co., Cox Construction assumption of risk in addition to a contribu Gordon v. City, Provo 15 Utah tory negligence short, instruction. we do 2d not think that instructions on both contrib utory negligence assumption of risk in The judgment is affirmed. Costs necessary. this case were To the extent plaintiff. Rigtrup opin is inconsistent with this ion, it hereby overruled. It follows from MAUGHAN, J., WILKINS, J.,* C. what has been stated that it was not error require to refuse to make a concur. specific finding additional language HALL, (dissenting): Justice beyond of risk required in the contributory negligence interrogato appears It from the evidence that one of ry. support Further for the conclusion is things, three thereof, or a combination found in the fact that proposed could have caused injuries: 1) instructions, of risk which were guard, 2) lack of a blade creeping of the given, were erroneous and could not blade, 3) plaintiff's or inattention. provided a foundation for the inter-r ogatory.5 The record contains no direct evidence the lack of guard a blade creep- Finally, there is no contention in this case ing of the actually saw blade caused the there agreement was an whereby accident. expert Plaintiff's witness did tes- plaintiff agreed accept danger here, tify, however, as nor to the obvious was the nature of relationship between dangers. opined those two He and defendant it was defendant had no duty of care plaintiff. "plain to see" that the saw was "unreasona- *7 Indeed, proposed Instruction INSTRUCTION NO. 12 "assumption Nos. 11 clearly and 12 on of risk" Before the doctrine of of risk is assumption incorporated contributory negligence classical applicable, you (1) person must find: the in language: question knowledge must have actual of the danger, or the conditions must be such that INSTRUCTION NO. 11 legal he would principal have commonly There is a if he exer- [sic] (2) cised ordinary care, he must have free- referred to the term by of "assumption risk" dom of This freedom of choice must choice. which is as follows: have come from circumstances that provide One is said to assume a risk when he vol- him a reasonable without violat- opportunity, dangerous manifests untarily his assent to a ing legal or moral to refuse to safely condition and himself voluntarily exposes to danger himself danger expose to the in question. that when he or in knows, the exer- interrogatory An based on those definitions of cise of care would ordinary know, that a improper. of risk would have been danger exists in the condition of the equip- ment or and premises uses the equipment * Wilkins, Justice, acted on this case premises to his voluntarily places and prior and himself resignation. remains, position or danger. within the of blade, but away from the by-four, a blade lacked it since dangerous" bly otherwise, over he reached or tendency to inattention a it "had since and guard, thereof, side two-by-four to the back position. rest the the from forward move" blade. certainly obvious the into dangers were and These upon his opinion, based since he him facts light in of all viewed When saw, simply testing of the or operation failing to case, in the error I deem of this it, which of from observation his brief upon as not danger" instruction "obvious give an blade, turning up to the theorized he The failure harmless. merely of movement cause "some 4,000 rpm, would may is entitled party instruction experi- plaintiff's with Anyone blade." the 1) to: if it tends error reversible constitute could, and familiarity saws with and ence the prejudice of the mislead same observa- the readily made should insufficiently or 2) party; or complaining saw. use the proceeding tion before the law.1 jury as to the erroneously advises was: causation testimony as to Plaintiff's dan obvious of an absence this the In in I slid it two-by-four I took the prevented well have may ger instruction towards [guide] one-by-four front of the defend as to whether proper determination one-by- against the [gauge] and nail instance. in the first negligent was ant now to over glanced As I .... four prejudicial. as Therefore, the error I view and to that nail my attention focus applies said been heretofore What has two-by-four edge of the this sure make to instruct refusal to the court's equally I felt one-by-four, up against risk. assumption of doctrine jury on the my yank hand my thumb grab saw by the taken Notwithstanding position .... into the blade Rigtrup v. the case opinion, I view main explanation foregoing light of the as Association2 Strawberry Water Users not wheth- it matters plaintiff, the event the doe- proposition standing for the move" was "tendency the blade er a viable remains assumption of risk trine of it it seems danger, since an obvious the con with defense, being consistent it the accident cause of been a not have could as delineated fault cepts of that had seen in is to be anyway. This Act.3 More Negligence Comparative forward, neces- it would. crept in fact blade desig U.R.C.P., specifically over, 8(c), Rule it came to rest when come sarily have contribu risk and assumption of nates both plaintiff was with the contact defenses. as affirmative tory negligence man- Certainly, without to cut. positioning cut not have assistance, could the doctrine Application the blade ual plaintiff of knowledge by it would two-by-four which requires through the hand. As plaintiff's dangerous reach condition.4 to do to have had defect specific course, negli assumes, This the risk sumption of on the front positioned The for properly legal doctrines. hand distinct gence are away from two-by-four, exposes voluntarily side of one where applies mer > latter danger, blade. known himself to dis negligently fails where one applies negligence on found as Inasmuch may arise danger.5 Situations cover apparently con- plaintiff, overlap as doctrines the two where posi- properly plaintiff did not cluded Prosser: by Dean noted two- side of the on the front his hand tion *8 Jongsma, Ferguson 179, 2d 350 10 Utah v. 4. P.2d 442, 2d 491 Ouzounian, 26 Utah v. 1. State (1960); Utah 9 Johnson v. Maynard, 404 P.2d (1971); Broth- also, v. Graven Rowley see 1093 (1959); 448, also, Foster Co., 1209 see 2d 491 P.2d 268, 2d 26 Utah ers & (1969). 148, Steed, 1021 459 P.2d 2d 23 Utah (1971). Angeles Co., S.L.R. (1977). Los 1247 5. Kuchenmeister v. 2. also, Clay see 725 116, 172 P. 52 Utah (1952). 177, Dunford, P.2d 1075 239 121 Utah U.C.A.1953, 78-27-37. 3.

873 assumption of risk. omit- may when the two co-exist Obviously [Citations situation, party If such be the choice to unreasonable makes an ted.] charged responsibility should be with risk; with may exist but either incur the conduct, by may term it difference, for his whatever significant The the other. out called; negli- comparative be one, likely to be one there is when quoted ap- should be genee statute above known were in fact risks which between plied.... which he mere plaintiff, and risks to the by just the exercise stated is the might discovered That our conclusion ly ordinary supported, care.6 our law is correct one under reasoning just only by stated and often been past, terms have In the cited, abundantly but is made the cases applied. This was so because loosely rather legislature, fact clear negli- to a complete defense each was a avoid misun apparently in order to knowing- action, one gence whether thereon, appended the last derstanding risk," the ly negligently "assumed quoted above that: as used sentence as recovery. When was the same-no result act, "contributory negligence" in this Comparative passed our legislature "assumption of the risk." That cludes Act, specifically recog- supra, it Negligence legislative a clear in sentence indicates "assumption of the nized the doctrine of recognize of "as tent the doctrine within the term "con- risk" and included it aspect of sumption of risk" as an contrib negligence." the enactment tributory Since Therefore utory negligence in Utah law. thereof, has held that this Court judicially any attempt on our defense in Utah. a viable of risk remains defense would amount to a abolish that approved the supra, this Court Rigtrup, legislative repudiation of the ex direct contributory both on giving instructions usurpation pression a clear and thus assumption of risk. negligence and legislative prerogative.9 as follows: matter was stated therein 9 v, School 25 Dist., Becker Beaverton See been some differ- Though there have P.2d where the court 551 Or.App. of as- view as to the defense that a ences in refused to rule completely the defense had abolished statute its relation to other sumption risk and assumption,of the risk. negligence, has contributory it aspects of Therefore, of a regarded as time immemorial been since voluntarily encounters knowingly and who the law of this defense in State. a valid compared any of that of a is to be with been said to be but has sometimes It provisions pursuant a defendant negli- aspect of specialized Act, supra.7 Negligence Comparative intermingled and can be gence in that it In the instant aspects thereof in cer- fused with other danger involved in appreciation of the It is also sometimes circumstances. tain question for the operating the saw was something separate from con- be said to it was error for the court not to jury,8 and undoubtedly it tributory negligence, as as appropriate instruction on such However, can be in some circumstances. sumption of risk. requires little reflection see but danger, the risk where there is a known pur- reverse and remand for I would par- voluntarily assumed of which is pose of a new trial. fall within the ty, such action well CROCKETT, J., dissenting negli- in the concurs care which constitutes lack of due HALL, J. correctly opinion termed gence may be and also defense, only ish of risk as a Pros William Torts, of the Law of 6. Handbook "assumption suggested risk" the abolition (4th ed.), 68, at 441. § p. ser terminology. Engineer- Structo-Lite 7. Jacobsen Const. Co. v. Ogden P.2d 123 Utah Wold v. ing, City, It is to be Inc., Utah, holding not abol- in Jacobsen did noted that the