Jasper v. Lumpee
Decision Date | 23 January 1970 |
Docket Number | No. 387,387 |
Citation | 1970 NMCA 14,81 N.M. 214,465 P.2d 97 |
Parties | Nick JASPER, Plaintiff-Appellant, v. Earl LUMPEE, Defendant-Appellee. |
Court | Court of Appeals of New Mexico |
This is a suit for personal injuries. Plaintiff appeals from a judgment in favor of defendant entered pursuant to a jury verdict. We affirm.
Assumption of risk was an issue in the case, and the jury was instructed thereon, without objection, in the form prescribed by New Mexico Uniform Jury Instructions, Civil (U.J.I. 13.10), as follows:
'Plaintiff's knowledge of the danger can be actual knowledge or plaintiff is presumed to know of the danger if the risk is obvious.'
There was testimony by plaintiff to the effect that he recognized the danger involved in what he was doing and realized he was running a risk, but he wanted to keep his job with defendant.
Defendant requested and the court gave the following instruction immediately following the giving of U.J.I. 13.10:
Plaintiff urges the effect of this instruction was to eliminate the requirement of voluntary exposure to danger, which is an essential element of assumption of risk.
Plaintiff also urges: (1) His employer, defendant, was aware of the defect in the equipment which created the danger; (2) Defendant was present and directing the work; and (3) He, plaintiff, was suddenly subjected to an unforeseen and extraordinary risk. He, therefore, apparently contends, the doctrine of assumption of risk was not applicable.
We shall first consider plaintiff's contention that the doctrine of assumption of risk was not applicable to the facts in this case for the three reasons above stated. He must fail in this position because the evidence as to some of his stated reasons is at least in dispute, and because there was no objection made to instructing the jury on assumption of risk in the form of U.J.I. 13.10. In order to preserve error in the giving of an instruction, objection must be made thereto, whether in U.J.I. or not. Rule 51(i), Rules of Civil Procedure (§ 21--1--1(51)(i), N.M.S.A.1953 (Supp.1969)). See also, Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967); Lanier v. Securities Acceptance Corporation, 74 N.M. 755, 398 P.2d 980 (1965); Zamora...
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Williamson v. Smith
...C. Bateson Construction Company, 370 F.2d 281 (10th Cir. 1966); Padilla v. Winsor, 67 N.M. 267, 354 P.2d 740 (1960); Jasper v. Lumpee, 81 N.M. 214, 465 P.2d 97 (Ct.App.1970); Williamson v. Smith, supra. Gradually, assumption of risk was extended beyond contractual relationships, so that it ......
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Rice v. Gideon
...on last clear chance in the form of U.J.I. 12.12. Claimed error in giving U.J.I. 12.12 was not preserved for review. Jasper v. Lumpee, 81 N.M. 214, 465 P.2d 97 (Ct.App.1970). The objection made, supra, that the instruction was not a proper statement of the law is not specific enough to pres......
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Williamson v. Smith
...the fact that he undertakes it through fear or threat of dismissal will not relieve him of the assumption of risk. Jasper v. Lumpee,81 N.M. 214, 465 P.2d 97 (1970); Demarest v. T. C. Bateson Constr. Co.,370 F.2d 281 (10th Cir.1966); Gamble v. Gamble, 171 Neb. 826, 108 N.W.2d 92 (1961); Gabb......
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State v. Herrera, 519
...v. Ascarate, 21 N.M. 191, 153 P. 1036 (1915), error dismissed 245 U.S. 625, 62 L.Ed. 517, 38 S.Ct. 8 (1917); see Jasper v. Lumpee, 81 N.M. 214, 465 P.2d 97 (Ct.App.1970). Further, assuming, but not deciding that the handwritten portion of the instruction was a notation contrary to § 21--1--......