(dissenting in part).
I concur in the majority opinion which affirms the judgment in favor of Lennox Company, Inc. I dissent as to affirmance of the judgment in favor of Miller Metal Company because it was reversible error to instruct the jury on issue of assumption of risk. The Poes and the Stalkers will be referred to as Poe.
The trial court instructed the jury on the defense of assumption of risk. U.J.I. 13.-10. To warrant this instruction, there must be substantial evidence that (1) a dangerous situation existed; (2) that Poe knew of such dangerous situation; (3) that Poe voluntarily exposed the Poe home to the danger and was damaged thereby. Poe’s knowledge can be actual knowledge of the dangerous situation, or, if the risk is obvious, he is presumed to know the danger.
Miller installed a gas furnace in the garage of the Poe residence. It was enclosed in a closet without doors on the front of the closet. There was duct work leading from the furnace. The residence was unoccupied from July 30, 1966 to the date of the fire on January 2, 1967. During his absence, Poe told his daughter to winterize the house, to open the dampers so that the heat would get into the house during the winter. The dampers were not opened by the daughter. The heat was left at 60°. There is no evidence that Poe knew the heat in the furnace with the dampers closed could reach 400° or more, and ignite the wooden frame Y" from the furnace. This was not an obvious risk.
Poe and Stalker were retired men. There was no evidence of any occupation, nor any knowledge of causes of fire from a heated furnace with dampers closed, nor any experience as gas experts or with furnace operations.
A careful review of the record discloses no evidence, nor any facts from which reasonable inferences can be drawn that Poe knew of the dangerous situation, i. e., that a furnace with 60° heat and dampers closed would reach a heat of 400° or more, and ignite a wood frame Y&' from the furnace. No questions were asked Poe on the subject. Stalker was physically unable to appear to testify. Poe had no actual knowledge, and the risk was not obvious to any ordinary person. Without such knowledge, Poe could not voluntarily expose the property to the danger. There is no circumstantial evidence which imposes on Poe the doctrine of assumption of risk.
In order for Poe to assume the risk, the specific danger must be known. Garcia v. Barber’s Super Markets, Inc., 81 N.M. 92, 463 P.2d 516 (Ct.App.1969). An ordinary layman does not know that failure to open dampers will cause a fire. That a fire will take place is as far from his mind as stardom. He ordinarily believes that to open dampers to allow heat in the house will prevent pipes from freezing; that extreme cold weather will not physically damage his home.
Miller seeks to avoid reversal by contending Poe failed to demonstrate how prejudice resulted. Reversible error arises where no evidence supports an instruction on assumption of risk. Stephens v. Dulaney, 76 N.M. 181, 413 P.2d 217 (1966).
Miller further contends that since Poe did not object to instructions on contributory negligence, no prejudice resulted from submission of an instruction on assumption of risk. This contention is based on Restatement of Law of Torts, Second, § 466 (a), Comment (d), that contributory negligence and assumption of risk overlap, and the plaintiff may be barred from recovery by either or both; that “had the jury made a determination that the Poes or Stalkers assumed the risk, such a determination would have necessarily involved a determination that said persons were also contributorily negligent.” This argument is speculative, but it is answered to the contrary in Stephens v. Dulaney, 78 N.M. 53, 428 P.2d 27 (1967), where the court said:
Conduct under certain facts and circumstances may amount to an assumption of risk as well as contributory negligence. [Citing cases]. However, assumption of risk and contributory negligence are not synonymous, but are separate and distinct defenses. [Citing cases].
The error was not harmless.
Furthermore, the Supreme Court has granted certiorari in three cases involving the defense of assumption of risk. Until a decision is reached, this court should follow the established principles on this subject.