dissenting.
The majority opinion concludes that there was reversible error because there were duplicative instructions. I disagree. First, it should be noted that the trial judge admonished the jury as follows:
“If in these instructions any rule, direction or idea is repeated or stated in varying ways, no emphasis thereon is intended by me and none must be inferred by you.”
The instruction given in terms of assumption of risk was as follows:
“You are instructed that a person is said to assume a risk when the person freely, voluntarily and knowingly manifests, an assent to dangeous 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 condition 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.”①
*303The majority opinion sets out various other instructions which the court deems duplicative. I have identified the separate parts of these instructions for later reference:
(A)
“Now, in order for the Defendants to prevail on their claim 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 answers which was a proximate cause of any damage the Plaintiff may have suffered.”
(B)
“Negligence is the doing of something which a reasonably prudent person would not do or the failure to do something which a reasonably prudent person would do under circumstances similar to those shown by the evidence.
“It is the failure to use ordinary or reasonable care.
“Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid an injury to themselves or others under circumstances similar to those shown by the evidence.
“Ton will note that the person whose conduct we set up as a standard is not the extraordinary cautions individual, nor the exceptionally skillful one, but a person of reasonable and ordinary prudence.”
*304(C)
“Now, contributory negligence is negligence on the part of a Plaintiff which, combining with a negligence of a Defendant, if any, contributes as a proximate cause in bringing about the injury.
“Of course as I have instructed you a Plaintiff who is contributorily negligent cannot recover for such injuries.”
(D)
“You are instructed that an invitee may not recover if she acts unreasonable (sic) in encountering the danger or having reasonably encountered the danger she thereafter fails to exercise due care for her own safety.”
It must be borne in mind that none of the foregoing instructions are prejudicial unless they are not only duplicative but by their repetition undue emphasis is put upon an idea which is detrimental to plaintiff’s case.
(A)
The instruction designated under (A) purports to explain who has the burden of proof and the weight of evidence necessary to prove the allegation of contributory negligence. This is not explained elsewhere in the instructions and therefore I do not see how the majority can describe this as duplicative. Certainly, the mere mention of “contributory negligence” in the instruction cannot be regarded as harmful.
(B)
I am at a complete loss to understand why the majority would select as duplicative instructions those appearing under (B). These are the standard instructions on negligence generally. There is no mention of *305contributory negligence. How, then, can these be criticized for repetitiveness?
(C)
Under (C) we have the simple statement that contributory negligence is causally connected negligence on the part of the plaintiff. I fail to see how this duplicates anything said in the instruction on assumption of risk first set out in the majority opinion.
(D)
Then we come to (D) which, after sixteen lines of instructions relating to a possessor’s duty to an invitee, was followed by the instruction on assumption of risk referred to above. Note that (D) speaks of the manner in which the invitee encounters the risk and the instruction on assumption of risk explains what constitutes a voluntary assumption of risk and the consequence thereof. All of this the jury should know about. I see no duplication in any of it.
It seems to me that each of these allegedly duplicative instructions expresses a different idea and that they therefore do not overemphasize an idea unfavorable to plaintiff. The majority opinion represents a highly technical application of the law which forces the trial court and the defendant to unnecessarily retry a case.
It is to be observed that the majority opinion does not say that it is improper to use the language of “assumption of risk” in giving an instruction on contributory negligence (now commonly referred to as assumption of risk in the secondary sense), nor does the opinion find fault with the instruction for leaving *306it uncertain as to whether assumption of risk in the primary or in the secondary sense is intended.②
The instruction on assumption of risk given in the present case is subject to criticism on a ground not mentioned in the majority opinion. The instruction is not cast in terms of an unreasonable, assumption of the risk which, of course, would be necessary to characterize plaintiff’s conduct as contributory negligence. Without so qualifying the instruction the jury might regard it as meaning that plaintiff would be barred if she voluntarily assumed the risk whether her conduct was reasonable or unreasonable. But the exception taken to the instruction was not on this ground and even if it had been, I think that the instruction on the unreasonable encountering of danger which I have set out in the text above and the instruction set out in the margin that plaintiff would be entitled to a verdict only if she was not negligent are sufficient to apprise the jury of the theory on which recovery is based.
I suspect that a part of the confusion which we labor under is that the term “assumption of risk” is used in two different ways: (1) as if the term describes a legal theory, and (2) as if it were simply descriptive of the factual situation where the plaintiff encounters a known danger. If the term is used in the first sense, then it would be improper to confuse it with the separate legal theory of contributory negligence. On the other hand, if assumption of the risk is understood as a factual description, it would be appropriate to describe the ureasonable assumption of a known risk *307as contributory negligence. I assume that the majority opinion finds acceptable this latter usage.
Denegre, J., joins in this dissent.The instructions then continued as follows: “Now, a Plaintiff who was not eontributorily negligent and who was injured as a proximate result of some negligent conduct on the part of a Defendant is entitled to recover compensation for such injury from that Defendant.
*303“Therefore the Plaintiff in this action is entitled to a verdict in this case if you find in accordance with my instructions, first, that the Defendant was or one of them was in fact negligent. Second, that such negligence was a proximate cause of the injury to the Plaintiff. And third, that the Plaintiff was herself not negligent or if negligent that her negligence did not contribute as a proximate cause to her own injuries.”
Franks v. Smith, 251 Or 98, 444 P2d 954 (1968) holds that where assumption oí risk in both its primary and secondary senses is at issue it is proper to instruct the jury in the language which was used in the present case. Whether this holding in Franks is correct is of no present concern.