(dissenting):
It appears from the evidence that one of three things, or a combination thereof, could have caused plaintiff's injuries: 1) lack of a blade guard, 2) creeping of the blade, or 3) plaintiff's inattention.
The record contains no direct evidence that the lack of a blade guard or the creeping of the saw blade actually caused the accident. Plaintiff's expert witness did testify, however, as to the obvious nature of those two dangers. He opined that it was "plain to see" that the saw was "unreasona*872bly dangerous" since it lacked a blade guard, and since it "had a tendency to move" forward from the rest position. These dangers were certainly obvious to him since he based his opinion, not upon his operation or testing of the saw, but simply upon his brief observation of it, from which he theorized that the blade, turning up to 4,000 rpm, would cause "some movement of the blade." Anyone with plaintiff's experience and familiarity with saws could, and should have readily made the same observation before proceeding to use the saw.
Plaintiff's testimony as to causation was: I took the two-by-four and I slid it in front of the one-by-four [guide] towards the nail [gauge] and against the one-by-four .... As I glanced over now to focus my attention on that nail and to make sure this edge of the two-by-four was up against the one-by-four, I felt the saw grab my thumb and yank my hand into the blade ....
In light of the foregoing explanation of the event by plaintiff, it matters not whether the "tendency of the blade to move" was an obvious danger, since it seems that it could not have been a cause of the accident anyway. This is to be seen in that had the blade in fact crept forward, it would. necessarily have come to rest when it came in contact with the two-by-four plaintiff was positioning to cut. Certainly, without manual assistance, the blade could not have cut through the two-by-four which it would have had to do to reach plaintiff's hand. This assumes, of course, that plaintiff's hand was properly positioned on the front side of the two-by-four, away from the blade. >
Inasmuch as the jury found negligence on the part of the plaintiff, it apparently concluded that plaintiff did not properly position his hand on the front side of the two-by-four, away from the blade, but that by inattention or otherwise, he reached over the two-by-four to the back side thereof, and into the blade.
When viewed in light of all of the facts of this case, I deem the error in failing to give an "obvious danger" instruction as not merely harmless. The failure to give an instruction to which a party is entitled may constitute reversible error if it tends to: 1) mislead the jury to the prejudice of the complaining party; or 2) insufficiently or erroneously advises the jury as to the law.1 In this case, the absence of an obvious danger instruction may well have prevented a proper determination as to whether defendant was negligent in the first instance. Therefore, I view the error as prejudicial.
What has heretofore been said applies equally to the court's refusal to instruct the jury on the doctrine of assumption of risk. Notwithstanding the position taken by the main opinion, I view the case of Rigtrup v. Strawberry Water Users Association2 as standing for the proposition that the doe-trine of assumption of risk remains a viable defense, it being consistent with the concepts of comparative fault as delineated in the Comparative Negligence Act.3 Moreover, Rule 8(c), U.R.C.P., specifically designates both assumption of risk and contributory negligence as affirmative defenses.
Application of the doctrine of assumption of risk requires knowledge by plaintiff of a specific defect or dangerous condition.4 Assumption of the risk and contributory negligence are distinct legal doctrines. The former applies where one voluntarily exposes himself to known danger, and the latter applies where one negligently fails to discover the danger.5 Situations may arise where the two doctrines may overlap as noted by Dean Prosser:
*873Obviously the two may co-exist when the plaintiff makes an unreasonable choice to incur the risk; but either may exist without the other. The significant difference, when there is one, is likely to be one between risks which were in fact known to the plaintiff, and risks which he merely might have discovered by the exercise of ordinary care.6
In the past, the terms have often been rather loosely applied. This was so because each was a complete defense to a negligence action, that is, whether one knowingly or negligently "assumed the risk," the result was the same-no recovery. When the legislature passed our Comparative Negligence Act, supra, it specifically recognized the doctrine of "assumption of the risk" and included it within the term "contributory negligence." Since the enactment thereof, this Court has held that assumption of risk remains a viable defense in Utah. In Rigtrup, supra, this Court approved the giving of instructions both on contributory negligence and assumption of risk. The matter was stated therein as follows:
Though there have been some differences in view as to the defense of assumption of risk and its relation to other aspects of contributory negligence, it has since time immemorial been regarded as a valid defense in the law of this State. It has sometimes been said to be but a specialized aspect of contributory negligence in that it can be intermingled and fused with other aspects thereof in certain circumstances. It is also sometimes said to be something separate from contributory negligence, as it undoubtedly can be in some circumstances. However, it requires but little reflection to see that where there is a known danger, the risk of which is voluntarily assumed by a party, such action may well fall within the lack of due care which constitutes negligence and also may be correctly termed an assumption of risk. [Citations omitted.] If such be the situation, the party should be charged with the responsibility for his conduct, by whatever term it may be called; and the comparative negli-genee statute quoted above should be applied....
That our conclusion just stated is the correct one under our law is supported, not only by the reasoning just stated and the cases cited, but is made abundantly clear by the fact that the legislature, apparently in order to avoid any misunderstanding thereon, appended the last sentence as quoted above that: as used in this act, "contributory negligence" includes "assumption of the risk." That sentence indicates a clear legislative intent to recognize the doctrine of "assumption of risk" as an aspect of contributory negligence in Utah law. Therefore any attempt on our part to judicially abolish that defense would amount to a direct repudiation of the legislative expression and thus a clear usurpation of the legislative prerogative.9
Therefore, the negligence of a plaintiff who knowingly and voluntarily encounters a risk is to be compared with any of that of a defendant pursuant to the provisions of the Comparative Negligence Act, supra.7
In the instant case, plaintiff's knowledge and appreciation of the danger involved in operating the saw was a question for the jury,8 and it was error for the court not to give an appropriate instruction on such assumption of risk.
I would reverse and remand for the purpose of a new trial.
CROCKETT, J., concurs in the dissenting opinion of HALL, J.. State v. Ouzounian, 26 Utah 2d 442, 491 P.2d 1093 (1971); see also, Rowley v. Graven Brothers & Co., 26 Utah 2d 448, 491 P.2d 1209 (1971).
. Utah, 563 P.2d 1247 (1977).
. U.C.A.1953, 78-27-37.
. Ferguson v. Jongsma, 10 Utah 2d 179, 350 P.2d 404 (1960); Johnson v. Maynard, 9 Utah 2d 268, 342 P.2d 884 (1959); see also, Foster v. Steed, 23 Utah 2d 148, 459 P.2d 1021 (1969).
. Kuchenmeister v. Los Angeles and S.L.R. Co., 52 Utah 116, 172 P. 725 (1918); see also, Clay v. Dunford, 121 Utah 177, 239 P.2d 1075 (1952).
See Becker v, Beaverton School Dist., 25 Or.App. 879, 551 P.2d 498, where the court refused to rule that a comparative negligence statute had completely abolished the defense of assumption,of the risk.
. Handbook of the Law of Torts, William Prosser (4th ed.), § 68, at p. 441.
. Jacobsen Const. Co. v. Structo-Lite Engineering, Inc., Utah, 619 P.2d 306 (1980). It is to be noted that the holding in Jacobsen did not abolish assumption of risk as a defense, but only suggested the abolition of "assumption of risk" terminology.
. Wold v. Ogden City, 123 Utah 270, 258 P.2d 453 (1953).