specially concurring.
I agree that under Restatement (Second) of Torts § 402A, comment n., there are three requirements for assumption of risk: (1) subjective knowledge, and (2) a voluntary encounter which is (3) unreasonable under the circumstances. I also agree that the trial court failed to instruct on the third requirement but that plaintiff did not except to the instruction as being inadequate on that basis and, therefore, the case could not be reversed on that ground.
The majority opinion then attempts to get at basically the same defect because of the court’s failure to give the following instruction:
"I have heretofore mentioned to you the circumstances of plaintiff’s own actions which could, under the evidence, prevent his recovery in this case. Along with the matters already mentioned to you, you are to consider all of the circumstances and conditions facing the plaintiff at the time and place of his injury. In doing so, you are to consider the working conditions, his obligation to do his job and the instructions he had received in connection therewith.”
*418The opinion holds that it was error not to give the instruction because it was necessary to point out to the jury that the conditions under which plaintiff worked were relevant to whether his actions in putting his arms through the forklift frame were unreasonable.
Despite there being no requirement that a person except to the court’s failure to give a requested instruction, plaintiff undertook to tell the trial judge why the instruction should have been given in the following language:
"* * * I am talking about, also, Instruction 14 that the jury could consider plaintiff’s own knowledge, acts, as compared to those of a reasonably prudent person. * * * »
Instruction 14 was the one which the opinion holds it was error to fail to give. Plaintiff told the trial court that the instruction should have been given because the jury should know that knowledge of the risk was a subjective and not an objective knowledge. He did not tell the court that the instruction should have been given because the act of encountering the risk had to be an unreasonable one. The reason given by the majority for reversing the case was obviously not in the minds of any of the participants in the lower court.
Assuming it was necessary to give an instruction that all the surrounding circumstances facing plaintiff must be taken into consideration by the jury in deciding whether he assumed the risk (surely a fairly obvious duty of the jury), it is my opinion that the instruction in this instance was one which the trial judge had the discretion either to give or to withhold. The last sentence of the instruction was as follows:
"In doing so, you are to consider the working conditions, his obligation to do his job and the instructions he had received in connection therewith.”
This is not the type of instruction which should be encouraged to the extent that we reverse a trial judge for failing to give it. While it may not be technically classed as a comment upon the evidence, it is the type *419of instruction which points out specific evidence (particularly the part about the instructions which were given to plaintiff) in preference to other evidence. Such an instruction was the subject of the following comment in Franks v. Smith, 251 Or 98, 104, 444 P2d 954 (1968):
"* * * Our approval of these instructions should not be construed as inferring that failing to give these requests would have been error. It would not. Whether or not to so instruct is largely within the trial court’s discretion.”
If giving the part of the instruction above set forth is good practice, in a case in which the evidence justified it, the trial court could have been required to give an instruction which included, "In doing so you are to consider * * * his necessity to earn money to support his family, his knowledge of the company’s policy of terminating workmen,” etc. Similarly, defendants would undoubtedly have evidence which bears upon the same subject and which they would want called to the attention of the jury by instruction. It is not good policy to reverse a judge for refusing to give an instruction which, instead of being general, points out particular evidence to the jury. I, therefore, disagree with that part of the majority opinion which reverses the case because of the failure to give the instruction.
The other serious issue in the case is the foreseeability instruction discussed in the majority opinion at n. 12. This instruction was in conformance with the tenor of Anderson v. Klix Chemical, 256 Or 199, 472 P2d 806 (1970), which held that there was no difference between negligence and strict liability insofar as a design defect was concerned. However, subsequent to the trial in this case, Anderson was overruled by Phillips v. Kimwood Machine Co., 269 Or 485, 525 P2d 1033 (1974). The overruling had been foreshadowed by Roach v. Kononen/Ford Motor Co., 269 Or 457, 525 P2d 125 (1974).
The instruction was not erroneous at the time it was given and a similar instruction was requested by *420plaintiff. However, the defect in the instruction is so basic and vital to the whole idea of strict liability that, in fairness, plaintiff should probably have the benefit of the change in the law which occurred subsequent to the trial of the case. The issue of foreseeability, which is a negligence concept, is non-existent in a products liability case because it is assumed the manufacturer had full realization of the risk which injured plaintiff, whether or not he actually had or could have had such knowledge. Foreseeability having been assumed as part of the strict liability concept, there is no actual issue of foreseeability to be decided by the jury.
Because the giving of a foreseeability instruction made an ordinary negligence case of the issue, plaintiff was never given a chance to recover on strict liability. However, it should be made clear that the new trial is being ordered not because of any error on the part of the trial judge but because this court is, from time to time, changing the goalposts as the new concept of products liability gradually evolves.