Distinguished
Distinguished by Layman v. Braunschweigische Maschinenbauanstalt, Inc., 1983 N.D. LEXIS 434 (1983)
Wentz is clearly distinguishable from the instant case.
The opinion
TEIGEN, Judge
(dissenting).
I do not agree that under the state of the record in this case the court erred in instructing the jury on the defense of assumption of risk. Assumption of risk was pleaded as an affirmative defense and the evidence adduced was sufficient, in my opinion, to warrant the instruction.
“In determining whether there is evidence that will warrant an instruction, the court does not pass on the weight and sufficiency of the evidence. It is not error to submit an instruction covering a theory advanced by a party if there is any evidence on which to base it, although it might be slight and inconclusive, or opposed to the preponderance of the evidence. * * *
“It is not necessary that there be categorical evidence as to a matter covered by an instruction, it being sufficient if there is evidence of facts from which the fact might be inferred.” 53 Am.Jur. Trial, § 580.
“Each party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it.” 53 Am.Jur. Trial, § 582.
The evidence reveals that Wentz was seated at his desk, talking with other students gathered around; that his candle had been relighted, and one of the students poured shaving lotion onto the flame of the candle; that it flared up and the top of the bottle containing the shaving lotion was aflame when he removed it from the candle; that he put the flame out and set the bottle of shaving lotion down. Thereafter, another student picked up the bottle and he also poured shaving lotion onto the flame of the candle. It was during this second episode that Wentz was burned.
In its memorandum decision denying the motion for a new trial, the trial court reasoned that the evidence was sufficient for the jury to infer that Wentz was “participating in the entire episode to the extent of lighting the candle or watching the shaving lotion being poured on the flame.” The evidence is purported to establish that it was highly unlikely that the plaintiff would be totally oblivious to what was going on, considering the small size of the class and the activity it was engaged in at the time. I agree.
It appears that the rest of the students knew what was going on and the jury could infer from their testimony that Wentz also knew and was cognizant of the dangerousness of his voluntary exposure to the known danger by continuing to sit at his desk under these circumstances. I would affirm.