(specially concurring).
I concur in the reversal of this decision because the Supreme Court of this State has declared in clear terms that it is “fundamental error” for a trial court to use the word “must” when it should have used the word “should.” The reason given for the result reached is that such an instruction deprives a plaintiff of “ * * * a constitutional right.” Trojanovich v. Marshall, 95 Ariz. 145, 146, 388 P.2d 149 (1963).
Prior to Trojanovich, I had thought that almost any constitutional right could be waived. See 16 Am.Jur.2d Constitutional Law § 131, at 328; 16 C.J.S. Constitutional Law § 89, at p. 263.
Even so fundamental a constitutional right as that of jury trial1 is waived if the party does not make a written demand for same within ten days after the case is at issue. Rule 38(b), Rules of Civil Procedure, 16 A.R.S., and see Smith v. Rabb, 95 Ariz. 49, 54, 386 P.2d 649 (1963), holding that an oral request for a jury trial is insufficient.
Rule 51(a), Rules of Civil Procedure, 16 A.R.S., states categorically:
“No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”
When there is no objection to an instruction, as here, this rule has received vigorous support by our Supreme Court. See Kostolansky v. Lesher, 95 Ariz. 103, 387 P.2d 804 (1963); Coyner Crop Dusters v. Marsh, 90 Ariz. 157, 367 P.2d 208 (1961), rehearing *10091 Ariz. 371, 372 P.2d 708 (1962), and cases cited therein.
That errors of the Layton v. Rocha2 variety may be based more on semantics than fundamentals is suggested by the recent approval by our Supreme Court of the instruction that: “ ‘A person who thus assumes a risk is not entitled to recover for damage caused him * * ” (Emphasis added.) Wells v. Tanner Brothers Contracting Company, 103 Ariz. 217, 439 P.2d 489, 496 (1968). The italicized verbiage is the very same as that struck down in Schmidt v. Gibbons, 101 Ariz. 222, 224, 418 P.2d 378, 380 (1966), because it suffers “ * * * from the same defect * * * ” as the other compulsory instructions excised under the aegis of Layton. Whatever constitutional basis there is for Layton is equally applicable to an assumption of risk defense. Ariz.Const, art. 18, § S, A.R.S.3 That our Supreme Court can comfortably and unanimously approve such an instruction on assumption of risk, without seeing any fundamental error, is an explanation of why the trial court here failed to see his fundamental error in giving this instruction as to which no one objected.
By permitting a trial court to drift into this type of error, a litigant is guaranteed a retrial. He can take his chances with the first jury trial, knowing that, if he fails to succeed, he can try again with the word “must” changed to the word “should.” This should not be the law, but that it is, is undisputed, and such being the case, this court may not choose a different law.
. 90 Ariz. 369, 368 P.2d 444 (1962).
. “The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.”