(dissenting).
In Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970), it appears that our supreme court attempted to set at rest once and for all the jury’s responsibility when confronted with a contributory negligence problem in Arizona. The court observed that Article 18, § 5 of the Arizona Constitution “ . . . takes from the court all control of the defense of contributory negligence.” Analysis was made of the grammatical structure of the constitutional provision and its history was considered, including the cases construing it. The court clearly enunciated its conclusion that the provision makes “ . . . the jury rather than the court the sole arbiter of the existence or nonexistence of contributory negligence. (citing cases) This includes not alone the right to determine the facts, but to apply or not, as the jury sees fit, the law of contributory negligence as a defense.”
The instruction offered by the appellant properly instructed the jury in keeping with the guidelines laid down in Heimke v. Munoz, supra. The “should” instruction, as given, directed what the jury should do, without advising that the law gives the jury full discretion on whether or not to apply the doctrine of contributory negligence. Juries are expected to follow the instructions of the court and the court is duty bound to instruct the jury on the law applicable to the case. Arizona Constitution, Article 6, § 27.
The majority satisfies itself with the instruction given on the basis that “counsel were free to argue to the jury that the instruction meant they could allow the plaintiff to recover or not, as they see fit, in their sole discretion.” Such an argument contradicts what the court would later instruct the jury they “should” do. We can hope and expect that the jury will do as the court tells them they should.
A review of the arguments which are contained in the transcript reflects that counsel for defendant made capital of the instruction given and the majority’s offer to appellant that they could have argued, beyond and in conflict with the instruction given, appears hollow consolation indeed. Defense counsel’s argument contained in Vol. V of the Reporter’s Transcript included:
“ . . . if the plaintiff himself was independently negligent and responsible for this accident, then he should not recover.
In other words, if the fall had anything to do with the negligence of the plaintiff, then he should not recover.
It doesn’t have anything to do with whether or not the guard rail was in place there or whether it was not.
For those reasons, really, it doesn’t make any difference. I don’t think it is necessary for you to really determine or to really spend time arguing about whether or not on Friday evening when the construction company closed down, whether or not the guard rail was there, because in this case it doesn’t really make any difference. RT 39 and 40.
* * * * Sfc *
Let me say to you briefly, ladies and gentlemen, that if you believe that plaintiff caused or contributed to his injury, then he should not recover. RT 55.
% ij:
One of the areas of the law in Arizona is called contributory negligence.
Now, I will read to you what the Court will instruct you about what it means. *441That is, see, if both the plaintiff and the defendant were negligent, and their negligence caused the accident, well, then, the plaintiff should not recover. That is basically it in its simpler form. That is what it means.
The Court will tell you that ‘Contributory negligence is negligence on the part of the plaintiff which, combining with the negligence of the defendant, contributes in proximately causing the injury of the plaintiff.
And if the conduct of both the plaintiff and the defendant was negligent and if the negligent conduct of each considered separately was the proximate cause of the accident, it is immaterial who was more negligent.’
In such a case the plaintiff should not recover.
Contributory negligence, they are both at fault, if you are both at fault, you just wash it out, you leave the parties right where you found them in the courtroom. RT 57 and 58.
******
If the plaintiff was independently negligent in failing to look or in the manner in which the hose was passed around or in any other manner, he should not recover.
I think that what you will have to say to yourself is if you are going to return a verdict for the plaintiff, was this accident in that classification where the plaintiff had nothing whatsoever to do about it? And it was all the defendant’s fault, the hidden defect.” RT 58.
Without going into a detailed analysis of the foregoing argument in this dissent, it is readily apparent that portions of it conflict with the law of contributory negligence in this jurisdiction. In light of the instruction given, counsel for plaintiff was powerless to effectively respond and the plaintiff was clearly prejudiced.1
I feel compelled to express my disenchantment with our holding in Anderson v. Gobea, 18 Ariz.App. 277, 501 P.2d 453 (1972), followed by the majority, having since reflected further on the matter. There, we held that the “should” instruction does not mandate a verdict compatible with the law of contributory negligence, but gives a jury the right to opt against contributory negligence if it feels so disposed. Since this option is given to them by law, I believe the court is duty bound to “declare the law” and so inform them. The cavalier conclusion in Anderson v. Gobea that Heimke “ . . . merely reasserts the Layton v. Rocha doctrine . ” ignores the guidelines painstakingly set forth in Heimke. See Evans v. Pickett, 102 Ariz. 393, 430 P.2d 413 (1967) upholding a “should” instruction where other instructions advised of the jury’s sole discretion in applying the defense of contributory negligence.2
I believe that my colleagues are unduly presumptuous in not believing that the Supreme Court meant what it said in Heimke. In this connection I must concur with Division One, Judge Haire speaking for the court, when it said:
“ . . we cannot assume that the Supreme Court in its Heimke opinion *442did not mean exactly what it said.” Winchester v. Palko, 18 Ariz.App. 534, 537, 504 P.2d 65, 68 (1972).
For the reasons stated, I would reverse and remand for a new trial.
NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. § 12-120(E).
. Tlie jury was also misinstrueted on assumption of risk in the same vein.
. In 13 Ariz.L.Rev. 556, 560 (1971) the author concludes that Heimke v. Munoz, supra, in effect overrules the “should” instruction, when given without appropriate details as to its application. On February 8, 1974, the Supreme Court of Arizona adopted the following instruction on contributory negligence, thereby embodying the guidelines of Heimke into the following:
“The defendant claims that the plaintiff was negligent, and that his negligence contributed to cause the plaintiff’s injury. Whether contributory negligence is a defense is left to you. If both plaintiff and defendant were negligent, and if the negligence of each was the cause of the injury, the plaintiff should not recover. This means that you must decide two things:
(1) Whether the plaintiff was contribu-torily negligent, and
(2) If the plaintiff was negligent whether his negligence should prevent a verdict in his favor.”