Appeal from Circuit Court, Jackson County. L. L. Sawyer, Judge.
Karl Clinkinbeard, Medford, argued the cause for appellant. With him on the brief were Holmes, James & Clinkinbeard, Medford.
Hugh B. Collins, Medford, argued the cause for respondent Stevens Auto Sales. With him on the brief were Collins, Ferris & Velure, Medford.
W. V. Deatherage, Medford, argued the cause for respondent Smoot. With him on the brief were Frohnmayer & Deatherage, Medford.
In Banc. Holman, J. O'Connell, C.J., dissenting. Denecke, J., joins in this dissent. Howell, J., dissenting.
Plaintiff brought an action for damages resulting from personal injuries allegedly caused by defendants' negligence. A judgment was rendered for defendants pursuant to a jury verdict. Plaintiff appeals.
In the process of shopping for an automobile plaintiff entered the showroom of defendant Stevens
Auto Sales, Inc. (Stevens). A salesman for Stevens escorted her to a door which separated the showroom from the service department. It was the salesman's intention to escort plaintiff through the service department to inspect a vehicle which was outside the building. The salesman left plaintiff to go and get a key to the vehicle. It is disputed whether plaintiff had passed through the doorway into the service department at the time the salesman left her to get the key. In any event, plaintiff stepped through the doorway to the service department and then to the right to clear the doorway, which was being used by others, while she waited for the salesman. As plaintiff waited she stood between the front of a parked pickup truck and the wall of the service department.
The truck had been left with the defendant Stevens by the defendant Smoot for repair. Upon returning for the vehicle Smoot was directed by an employe of Stevens to drive the truck from the service department as the employes of Stevens were busy. Smoot entered the truck and activated the starter while the truck was in gear. As a result, the truck lurched forward, pinning plaintiff between the front of the truck and the wall, and inflicted the injuries for which she seeks recompense. Both plaintiff and the defendant Smoot deny they were aware of the presence of the other.
Plaintiff alleged in her complaint that the defendant Stevens was negligent in parking the truck in gear, failing to set the emergency brake, failing to drive the vehicle from the service department, and in not leaving plaintiff in a safe place or warning her of the dangers present in the service area. Plaintiff alleged that the defendant Smoot was negligent in
starting her vehicle while it was in gear, and in not maintaining a lookout for plaintiff and control of her car. The defendants alleged plaintiff was contributorily negligent in not keeping a lookout and in standing in front of the vehicle while it was being moved, and:
"In voluntarily and knowingly assuming the risk of injury by being in the service area of the Stevens Auto Sales where vehicles were being moved."
The defendant Stevens made other allegations of contributory negligence which were either duplicative of those mentioned or immaterial to this appeal.
The sole assignment of error relates to the propriety of the giving of the following instruction on assumption of risk:
"You are instructed that a person is said to assume a risk when the person freely, voluntarily and knowingly manifests an assent to dangerous conduct or to the creation or maintenance of the dangerous conditions and voluntarily exposes herself to that danger, when the person knows a danger exists in either the conduct or conditions of another or in the condition, use or operation of property and voluntarily places themselves or remains within the area of danger.
"A person who thus assumes a risk is not entitled to recover for damage caused to them which resulted from the dangerous condition or conduct or activity to which they voluntarily exposed themselves."
The following exception was taken to the instruction:
"We further except to Instruction No. 6 which is the instruction the Court gave based upon Franks versus Smith, 251 Oregon 98 and tendered by Defendant Stevens on assumption of risk which we believe to be an element and part of contributory
negligence and should not have been separately instructed by the Court."
The term assumption of risk may be used in a "primary" or a "secondary" sense. 2 Harper and James, The Law of Torts § 21.1 (1956). In its primary sense it refers to submitting one's self to the risk of injury by another in a situation where the other owes no duty to plaintiff and, therefore, does not act negligently in inflicting the injury. An example is where a player is injured at football by another who is playing within the rules. See Vendrell v. Sch. Dist. 26C, Malheur Co., 233 Or 1, 376 P2d 406 (1962). Also, Franks v. Smith, 251 Or 98, 444 P2d 954 (1968). In its secondary sense assumption of risk refers to knowingly submitting one's self to the dangers of another's negligent acts. See Thayer v. Ore. Fed. of Square Dance Clubs, 258 Or 302, 482 P2d 717 (1971), and Ritter v. Beals et al, 225 Or 504, 358 P2d 1080 (1961). In its secondary sense assumption of risk is nothing more than contributory negligence.
Following the above analysis it is clear that in the present case defendants' allegation of plaintiff's assumption of risk was nothing more than a general and non-specific allegation that plaintiff was contributorily negligent. Indeed, it was alleged as a specification of contributory negligence.
As pointed out in plaintiff's exception to the instruction, if an instruction upon assumption of risk is given when assumption of risk is used in its secondary sense and an instruction upon contributory negligence is given as well, defendants secure a double instruction on the same issue. The following instructions on contributory negligence had already been
given prior to the instruction on assumption of risk to which objection was made:
"Now, in order for the Defendants to prevail on their claims of contributory negligence on the part of the Plaintiff they must prove by a preponderance of the evidence that the Plaintiff was negligent in at least one respect charged in the Defendant's answer's which ...