The opinion
HOWELL, J.,
dissenting.
I agree with the majority that the defense of assumption of risk under the facts in this case is nothing more than an allegation of contributory negligence the same as the other allegations of contributory negligence contained in the defendant’s answer. As such it should be treated in the instructions in the same manner as the court ordinarily instructs on contributory negligence.
I do not agree with the majority that the case must be reversed because the instruction relating to assumption of risk was duplicative of other instructions on contributory negligence.
In the first place, I agree with the dissenting opinion of Chief Justice O’Connell that the instructions were not duplicative at least to the extent that they placed undue emphasis upon the defense of assumption of risk as an allegation of contributory negligence and were therefore detrimental to the plaintiff.
I am confident that trial judges conscientiously attempt to avoid giving instructions to jurors in such a manner or form that the instructions could be interpreted as emphasizing certain charges of negligence or contributory negligence. For this reason trial judges ordinarily include a general instruction that the jury should consider the instructions as a whole and not attempt to single out a particular instruction for special consideration. Such an instruction was given in this case.
*308 Moreover, I believe that it is extremely difficult for this court as an appellate court to decide that instructions given by the trial court are unfairly emphasized by other instructions. In some instances the pleadings of one party may contain more allegations of negligence or contributory negligence than the opposition’s pleadings because of the circumstances of the particular case. Also, it may develop that most of one party’s allegations of negligence or contributory negligence are stricken before the case is submitted to the jury. In any event, it would have to be a very clear case before this court, from an examination of the record, could affirmatively say that the instructions placed such unfair emphasis on a part of the case that the instructions, considered as a whole, were detrimental to the opposite party. I do not know of any decision where this court has reversed the trial court for that reason. I would not do so in this case.
Denecke, J., joins also in this dissent.