No. 13706 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

DEANE BROWN, 

Plaintiff and Respondent, 

NORTH AMERICAN YANUFACTURING COMPANY, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial 

District, 

Honorable Robert Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Murphy, Robinson, Heckathorn and Phillips, Kalispell, 

Montana 

I. James Heckathorn argued, Kalispell, Montana 

For Respondent: 

Morrison, Hedman and Trieweiler, Whitefish, 

Montana 

Frank B. Morrison, Jr. argued, Whitefish, Montana 

McGarvey, Lance and Heberling, Kalispell, Montana 

Submitted: September 28, 1977 

Decided: FEB 9 - 1978- 

Filed: FEB 9 - 1978 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court : 

Plaintiff Deane Brown lost his left leg in the auger of 

a self-unloading feed wagon known as a "Grain-0-Vator", manufactured by defendant North American Manufacturing Co., an 

Iowa corporation. In his original complaint, plaintiff 

specified negligence and strict liability in tort as theories 

supporting a damage recovery. 

The trial of the cause ultimately proceeded on the strict 

liability theory alone. Discovery consisted of depositions of 

the parties and certain anticipated witnesses for plaintiff. 

The case was tried before a jury in the District Court, Flathead 

County, beginning October 19, 1976. The jury returned a verdict 

for plaintiff in the amount of $318,167 and judgment was entered 

thereon. Defendant then filed motions for judgment notwithstanding the verdict or alternatively, for a new trial. The 

District Court denied both motions. Defendant appeals from the 

judgment and denial of its post-trial motions. 

For reasons set forth in this opinion, we find no errors 

were committed requiring either reversal of the judgment, a new 

trial or imposition of judgment notwithstanding the verdict. 

The facts are: 

In November 1970, plaintiff Deane Brown purchased a piece 

of farm equipment known as a Grain-0-Vator. The feed machine was 

approximately one year old at the time of purchase. The machine 

was manufactured by defendant North American Manufacturing Co. 

During the next three years, the equipment was operated and 

serviced by plaintiff's son, Calvin Brown. Plaintiff used the 

machine a few times prior to the accident involved here. 
The central function of the Grain-0-Vator is feed unloading 

and distribution. The feed contained in a large bin drops 

through an opening into a transfer auger, and is moved to an 

area where it is picked up and expelled through a spout. Attached to the bin, just over the transfer auger, is a curved 

metal door known as an "excess door". The door was hinged 

at the bottom on the particular model owned by plaintiff, and 

was held closed at the top by two springs. The purpose of the 

excess door was to provide a "relief valve". When excess feed 

pressure is exerted against the transfer auger, the door is 

forced open, and the excess feed pressure relieved. The feeder 

is operated by a power-take-off system, when attached to a 

tractor. 

Just prior to the accident plaintiff, an experienced 

farmer/rancher, 51 years of age, was operating the feeder. The 

feed had ceased coming out of the spout. Plaintiff descended 

from the tractor and left the power-take-off system-running, 

to observe if any mechanical problem existed. His intent was 

to first view the interior of the bin. There was no ladder or 

other means provided on the machine for access to a view of the 

bin. The height of the bin had been increased by extension 

boards furnished by defendant. 

Plaintiff mounted the machine by first placing his right 

foot on an iron reinforcement bar to the side of the transfer 

auger; then placed his left foot on the excess door covering the 

transfer auger. For his third step, he placed his right foot 

on a "gusset" just above and to the right of the excess door, with 

his left foot in the air above the excess door. Plaintiff observed feed in the bin, stepped down with his left foot, without 
looking down, intending to again place it on the excess door. 

The excess door had come open and, as a result, plaintiff stepped 

directly into the transfer auger. His left leg was pulled in 

and amputated by the mechanism. Plaintiff was alone and remained 

caught in the machine for some time before he was taken out and 

given medical aid. 

At trial, plaintiff testified that during his prior limited 

experience with the machine, the excess door had not come open. 

Whtle recognizing the area surrounding the excess door would 

be dangerous if the excess door were open, he stated he had no 

expectation the door would simply "come open'' and felt that the 

auger area, as covered, was not dangerous. Plaintiff further 

testified that no warning concerning the excess door appeared 

anywhere on the Grain-0-Vator. 

Carlton Zink was the plaintiff's expert witness. He has 

a Bachelor of Science degree in agricultural engineering from 

the University of Nebraska. Later he served for 12 years in 

charge of the tractor testing labratory in Lincoln, Nebraska. 

From 1950 to 1968, he worked for John Deere Company and after 

1952 he "took on the responsibility for product safety for 

John Deere as a corporate representative in product safety." 

He worked with the National Safety Council on "farm safety'' and 

was a president of the Farm Conference. He was a member of the 

National Institute for Farm Safety, the American Society of 

Agricultural Engineers, the Society of Automotive Engineers and 

the National Safety Council. From 1952 to 1968, he was involved 

with the development of safety design for John Deere Company. 

Zink testified the American Society of Agricultural Engineers 

recognized the need to effectually shield augers as early as 
1964 or even 5 years earlier. Further, the Grain-0-Vator in 

question *iledto conform to accepted safety design requirements in three particulars,r- the equipment unreasonably 

dangerous to the user: 1) The lack of effective shielding of 

the transfer auger because of the excess door being hinged at 

the bottom, and much more susceptible to entry when open. 

2) No ladder or other means was provided for gaining visual 

access to the bin. 3) No danger warnings appeared on the 

equipment or in the instruction manuel. 

An expert called by defendant was of the opinion the 

Grain-0-Vator was not defectively designed. 

The owner and principal officer of defendant, Elmer K. 

Hanson, testified he had designed the excess door. He indicated that prior to 1958, the door had been hinged at the 

top, but the design was modified so the door was hinged at 

the bottom in later models for added utility. He further 

stated that at the present time, the Grain-0-Vator is marketed 

with the excess door bolted on firmly and it cannot come open 

without manual removal. He admitted the Grain-0-Vator displayed no warnings, and no ladder or other access to a view 

of the interior of the bin was provided. However, he consistently maintained the machine was nondefective, and satisfied industry safety standards. 

Various exhibits were admitted throughout the course of 

the trial consisting primarily of pictures and diagrams of 

the Grain-0-Vator, and a movie introduced by plaintiff demonstrating the steps taken by plaintiff as he mounted and 

attempted to dismount the Grain-0-Vator, as portrayed by his 

son Calvin. The jury was also afforded an opportunity to view 
the particular Grain-0-Vator involved in the accident. At 

the close of the testimony and ensuing arguments, a jury verdict was returned in plaintiff's favor. 

We summarize the issues raised on this appeal: 

1) Was there sufficient evidence to support a finding 

the product was in a "defective condition unreasonably dangerous to the user or consumer?" 

2) Was there sufficient evidence to support a finding 

that an unreasonable danger or hazard existed which required 

a warning? 

3) Was there sufficient evidence to support a finding 

that the alleged defective condition was a proximate cause of 

injury to plaintiff? 

4) Did plaintiff, by his actions, assume the risk as a 

matter of law? 

5) Did the District Court err in giving its instruction 

on the law of assumption of the risk? 

6) Did the District Court err in giving its instruction 

concerning the elements of proof in a strict liability action? 

7). Did the District Court err in admitting into evidence 

the movie prepared and offered by plaintiff? 

Issue 1. Defendant contends the evidence adduced at the 

trial failed to satisfy the elements of a strict liability action 

as set forth in 2 Restatement of Torts 2d, 5402A. Rather, it 

is maintained, the sole conclusion supported by the evidence is 

that the danger was "open and obvious'' to plaintiff and therefore 

a complete bar to recovery. In support of the latter contention, 

defendant relies on the holding of cases from certain jurisdictions that a product is not "defective" or "unreasonably dangerous" if the danger occasioned by its use is open and obvious to 
the user. Tomicich v. Western-Knapp Engineering Company, (9th 

Cir. 1970), 423 F .2d 410; Morrow v. Trailmobile Inc., (1970), 

12 Ariz.App. 578, 473 P.2d 780; Zahora v. Harnischfeger Corp., 

(7th Cir. 1968), 404 F.2d 172; Halpern v. JAD Const. CoPp., 

This Court, in Brandenburger v. Toyota Motor Sales, U.S.A., 

Inc., (1973), 162 Mont. 506, 513, 513 P.2d 268, adopted the 

core definition of the doctrine of strict liability, set forth 

in 2 Restatement of Torts 2d, 5402A: 

" ' (1) One who sells any product in a defective 

condition unreasonably dangerous to the user or 

consumer or to his property is subject to liability 

for physical harm thereby caused to the ultimate 

user or consumer, or to his property, if 

"'(a) the seller is engaged in the business of 

selling such a product, and 

"' (b) it is expected to and does reach the user 

or consumer without substantial change in the condition in which it is sold. 

' (2) The rule stated in Subsection (1) applies 

a 1 though 

" ' (a) the seller has exercised all possible care 

in the preparation and sale of his product, and 

"'(b) the user or consumer has not bought the 

product or entered into any contractual relation 

with the seller. '" 162 Mont. 513. 

In order to establish a prima facie case in strict liability, 

based upon the above definition, a plaintiff must prove the 

following elements : 

(1) The product was in a defective condition, unresonably 

dangerous to the user or consumer; 

(2) The defect caused the accident and injuries complained of; and 

(3) The defect is traceable to the defendant. 

Following the well-established rule in this regard, this 

Court has stated that a defect in a products liability case 
may be shown by circumstantial as well as direct evidence. 

Brandenburger v. Toyota Motor Sales U.S.A., Inc., supra; Pierce 

v. Ford Motor Co., (1951), 190 F.2d 910, cert-denied 342 U.S. 887, 

72 S.Ct. 178, 96 L ed 666; Henningsen v. Bloomfield Motors Inc., 

(1960), 32 N. J. 358,16% A.2d 69, 75 ALR2d 1. In such a case, 

the defect might well be established through proof of the circumstances of the accident, a prior history of occupational 

difficulties, similar occurrences under certain circumstances, 

and elimination of alternative causes, including plaintiff's own 

conduct. The reasoning behind imposition upon a plaintiff of 

the more flexible standard of proof was recognized in Brandenburger : 

"The essential rationale for imposing the doctrine 

of strict liability in tort is that such imposition 

affords the consuming public the maximum protection 

from dangerous defects in manufactured products by 

requiring the manufacturer to bear the burden of 

injuries and losses enhanced by such defects in its 

products. If this be so, it requires little imagination to see that if a strict rule of direct evidence 

was required, the supposed benefit of the theory of 

strict liability would be lost to the consuming 

public." 162 Mont. 517. 

Recognition of a more flexible rule of evidence does not 

thereby convert strict liability into absolute liability. 

Ordinarily, a plaintiff will not sustain his burden of proof 

by merely establishing the fact of the occurrence of an accident. 

Dunham v. Vaughan & Bushnell Mfg. Co., 42 I11.2d 339, 247 N.E.2d 

401 (1969). Imposition upon a plaintiff of the burden of showing 

a traceable defect, causation and damage or injury assures an 

appropriate limitation to a manufacturer's liability. 

Defendant here advances the "open and obvious dangert' or 

"patent-latent" rule as a bar to plaintiff ' s recovery under the 

theory of strict liabflity. We reject such a rule. Recent 
authorities in other jurisdictions that previously adopted 

the rule have now abolished it in persuasive, well reasoned 

opinions. 

The "open and obvious danger" rule is not contained in 

2 Restatement of Torts 2d, 5402A nor in the comments thereto. 

It derives from the New York case Campo v. Scofield, 301 N.Y. 

468, 95 N.E.2d 802 (1950), and thereafter found acceptance in 

various jurisdictions. Strict liability cases relying on the 

"open and obvious danger1' rule have typically done so upon 

the express authority of Campo. See: Morrow v. Trailmobile, 

Inc., supra. 

However, the New York Court of Appeals has recently 

abandoned the "pa tent-la tent" distinction. Micallef v. Miehle 

Co., Div. of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376, 348 N.E. 

2d 571 (1976). Arizona has rejected the authority of Morrow, 

relied on by defendant. Byrns v. Riddell, Inc., 113 Ariz. 264, 

550 P.2d 1065 (1976). In so doing, the Arizona Supreme Court 

stated: 

"* * * We do not subscribe to this 'patent-latent' 

distinction in the context of a manufacturer's strict 

liability in tort. Its only function is to encourage 

patent design defects." 550 P.2d 1068. 

In Dorsey v. Yoder Company, (E.D.Pa. 1971), 331 F.Supp. 

753, the plaintiff suffered injuries to his hand when he placed 

it upon a piece of metal near the unshielded opening of a metal 

slitter, and was accidentally propelled into the machine. The 

defendant argued, in part, that plaintiff be barred from 

recovery due to the open and obvious character of the danger. 

The Dorsey court, after discussing the split of authority on 

the issue, rejected the "open and obvious danger" rule, holding: 
'I* * * Therefore, we hold that even though the 

danger of unguarded rotary blades was obvious 

to plaintiff, this does not ips0 facto preclude 

recovery." 331 F.Supp. 759. 

We note the Ninth Circuit case Tomicich v. Western-Knapp 

Engineering Co., supra, relied on by defendant, does not in fact 

deny recovery on the basis of the "open and obvious danger" 

rule. In Tomicich, Judge Russell E. Smith, while referring to 

various decisions supporting the "open and obvious danger" rule, 

including Campo, and noting that this Court has made no specific 

ruling on the question, suggests this Court might well be impressed with the criticism voiced against the rule. Liability 

was clearly denied on other grounds. 

We reject any rule which would operate to encourage misdesign. The fact that a danger is patent does not prevent a 

finding the product is in a defective condition, unreasonably 

dangerous to the particular plaintiff. Rather, the obvious 

character of a defect or danger is but a factor to be considered 

in determining whether the plaintiff in fact assumed the risk. 

The evidence in the instant case, however, tends to 

support a finding that the danger was hidden, rather than open 

and obvious, as it was concealed below the excess door. Plaintiff testified he seldom used the Grain-0-Vator and had never 

personally serviced the equipment. PBH-icularly revealing in 

this regard is the following testimony of plaintiff, given upon 

direct examination: 

Q. Did you realize that door and the auger 

there as being a dangerous area? A. No. 

"Q. You did not? A. No. 

"Q. Why not? A. Because it was dovered. 
"Q. Did you know prior to this accident, was the 

lid on this thing bolted down or whether it flipped 

up or anything about it? A. No. 

"Q. Prior to the time of the accident, did you 

know how the lid fastened to the machine? A. I knew 

it was hinged. 

"Q. Did you know whether it was bolted at the top 

or latched at the top or anything about that? 

A. No. 

"Q. No what? A. I did not know whether it was or 

whether it wasn't." 

Further, plaintiff's expert, Carlton Zink, testified the 

hazard or danger was, in his opinion, hidden. Defendant's 

reliance on the "open and obvious danger'' rule is thus misplaced. 

Here, plaintiff testified the fact the auger was shielded 

prevented him from expecting the injurious potential of the 

auger. It is unclear as to how the excess door came open. 

However, the salient fact remains the excess door did come 

open, in such a manner and under such conditions as to expose 

plaintiff to an unreasonable danger. 

The jury was presented with ample evidence of design 

defects which rendered the Grain-0-Vator unreasonably dangerous. 

Carlton Zink enumerated three specific design defects, based 

upon industry safety standards: (a) failure to hinge the excess 

door at the top, (b) failure to warn of the hazard, and (c) 

failure to provide steps or other access for mounting the 

equipment. When asked for his opinion as to whether the effect 

of the defects was to render the machine unreasonably dangerous, 

the expert responded in the affirmative. 

We hold plaintiff clearly met the burden of proof for a 

strict liability action, in proving a defect rendering the product 
unreasonably dangerous. plaintiff's evidence, while to some 

extent in conflict with certain evidence offered by defendant, 

was sufficient for submission to the jury. We refuse to disturb 

the jury's findings in this respect. 

Issue 2. In accordance with its prior argument, defendant 

also asserts it was not under a duty to warn of any danger 

associated with use of the Grain-0-Vator. In support of this 

contention, defendant advances the position there is no duty 

to warn of a danger which is obvious or of which the user has 

knowledge. 

As pointed out heretofore, the evidence strongly supports 

the conclusion the danger was in fact hidden, and plaintiff 

had no subjective knowledge or awareness of the particular danger. Plaintiff's expert in fact listed the failure to warn as 

a defect itself. Given such evidence, it was well within the 

power of the jury to conclude the danger was hidden and unknown 

to plaintiff, and a warning should have been given. 

Defendant also contends the product was not defective or 

unreasonably dangerous because it was functioning precisely 

as intended at the time of the accident. This contention is 

without merit. 

It has been held that' a failure to warn of an injury 

causing risk associated with use of a technically pure and fit 

product can render such product unreasonably dangerous. Davis 

v. Wyeth Laboratories, Inc., (9th Cir. 1968), 399 F.2d 121. 

In further expending the application of the Davis rule, the 

Ninth Circuit Court of Appeals in Jacobson v. Colorado Fuel & 

Iron Corporation, (9th Cir. 1969), 409 F.2d 1263, stated: 

"* * * Davis distills the essence of the rule to be 

that the manufacturer is under a duty to warn of 

dangers in 'non-defective' but potentially harmful 

products. * * * if the product is unreasonably 

dangerous and a warning should be given, but is not 
given, then the product is automatically 

'defective' * * *." 409 F.2d 1271. 

Issues 3 and 4. Defendant next contends there was insufficient evidence that the alleged defect' was the proximate 

cause of plaintiff's injury. Rather, it is maintained the 

evidence demonstrates plaintiff's own conduct was the proximate 

cause of his injuries, such that plaintiff assumed the risk as 

a matter of law. We disagree. 

A showing of proximate cause is a necessary predicate to 

plaintiff's recovery in strict liability. Strict liability is, 

of course, not complete "liability without fault" in the sense 

that it is absolutely immune to considerations of plaintiff's 

conduct, That character of plaintiff's behavior which breaks 

the chain of causation and operates- to bar recovery is described 

in 2 Restatement of Torts 2d, §402A, Comment (n) : 

"* * * Contributory negligence of the plaintiff is 

not a defense when such negligence consists merely 

in a failure to discover the defect in the product, 

or to guard against the possibility of its existence. 

On the other hand the form of contributory negligence 

which consists in voluntarily and unreasonably 

proceeding to encounter a known danger, and commonly 

passes under the name of assumption of risk, is a 

defense under this Section as in other cases of strict 

liability, If the user or consumer discovers the 

defect and is aware of the danger, and nevertheless 

proceeds unreasonably to make use of the product and 

is injured by it, he is barred from recovery." 

of 

We find the above standard/conduct of the plaintiff as 

related to the injury must be considered under the Montana 

case law. on'the assumption of risk when applied to strict 

liability cases. In the past Montana cases have not been 

consistent in distinguishing between the subjective standard 

required in the defense of assumption of risk, and the objective 

standard necessary to a contributory negligence defense, As 

Judge Jameson held in Deeds v. United States, 306 F.Supp. 348, 
"While the defense of assumption of risk is 

usually asserted in employer-employee cases, in 

Montana the defense has been extended to 'relationships independent of the master-servant relationship' . Cassaday v. City of Billings, 1959, 135 Mont. 

390, 392, 340 P.2d 509, 510 and cases there cited. 

Assumption of risk is governed by the subjective 

standard of the plaintiff rather than the objective 

standard of the reasonable man. * * *'I 

Henceforth, in product liability cases the defense of 

3 

assumption of risk. will be based on a subjective standard 

rather than that of the reasonable man test. 

The attributes of the defense of assumption of the risk 

in the context of strict liability are intelligently phrased 

and developed in Dorsey v. Yoder Company, supra: 

"* * * In addition to realizing the existence of 

the defect or danger and voluntarily doing an act 

which exposes him to it, the plaintiff must perceive and appreciate the risk involved, i.e., the 

probability of harm. * * *" 331 F.Supp. 765. 

Quoting 2 Restatement of Torts 2d, §496D, Comment (c) , the 

court in Dorsey continued: 

"'The standard to be applied is a subjective one, 

of what the particular plaintiff in fact sees, knows, 

understands and appreciates. In this it differs from 

the objective standard which is applied to contributory negligence. * * * If by reason of age or lack 

of information, experience, intelligence or judgment, 

the plaintiff does not understand the risk involved 

in a known situation, he will not be taken to assume 

the risk, although it may be found that his conduct is 

contributorily negligent because it does not conform 

to the conrmunfty standard of the reasonable man.'" 

331 F.Supp. 765. 

The Ninth Circuit has also followed the rule that the 

2 Restatement of Torts 2d, 5402A version of assumption of the 

risk requires a showing of knowledge of the danger which is 

subjective, conscious and personal to the plaintiff. Jackson 

v. Coast Paint and Lacquer Company, (9th Cir. 1974), 499 F.2d 
By the foregoing, we do not intend to impose a burden 

upon the defendant which is virtually impossible to discharge. 

The defendant need not and, in the usual case, cannot prove 

the subjective requisites of the assumption of the risk defense 

by direct evidence. Seldom would a products liability plaintiff 

admit through his own testimony that he had knowledge of the 

danger and appreciated the risk involved. Therefore a defendant, 

in a given case, may effectively discharge his burden in this 

regard through proof of the subjective elements by circumstantial 

evidence. Sperling v. Hatch, 10 Cal.App.3d 54, 88 Cal.Rptr. 

704 (1970). 

Turning to the record in the instant case, it is manifest 

there is no evidence whatsoever plaintiff had subjective knowledge the excess door would open as it did, exposing the blades 

of the transfer auger. It further appears, and the jury could 

well have found, that plaintiff did not realize the risk associated with the product relative to his use of it at the time 

of the accident. 

Defendant maint%ns that plaintiff , a knowledgeable and 

experienced farmer/rancher, assumed the risk of injury by 

knowingly and voluntarily climbing onto the machine while 

leaving the power-take-off system in operation. While plaintiff's act of climbing upon the Grain-O-Vator to inspect the 

bin was obviously voluntary, these questions remain: (1) Was 

it unreasonable for plaintiff to act as he did? (2) Was the 

danger actually known and appreciated by plaintiff? 

Under the evidence, plaintiff may be guilty at most of 

failing to discover the defect or guard against its possible 

existence. While plaintiff's actions may have amounted to some 

contributory negligence, it cannot be said he assumed the risk 
as a matter of law. The question is not whether plaintiff 

should - have realized the risk, but whether in fact he - did 

realize the risk involved. Defendant, in failing to establish 

plaintiff's actual knowledge and appreciation of the danger, 

did not discharge its affirmative burden of proof of the 

defense. 

The evidence, to the contrary, sufficiently supports the 

conclusion that plaintiff's injury was a direct result of 

the defective design, failure to warn, and failure to provide 

safe access to the bin. Plaintiff satisfied the burden, under 

the standard of proof outlined in Brandenburger, of showing 

the defect was the proximate cause of his injuries. 

Issue 5. The trial court gave as Court's Instruction No. 

10 an instruction on the defense of assumption of the risk: 

"You are instructed that assumption of risk is 

voluntarily placing oneself in a position to chance 

known hazards. If a person has assumed the risk, 

he cannot recover for any injury or damage sustained 

by him. In determining whether or not the plaintiff 

assumed a risk, you are not to consider whether or 

not the plaintiff exercised due care for his own safety, 

but must find the following factors existed: 

"1. That he had knowledge, actual or implied, 

of the particular condition. 

"2. That he appreciated the condition as 

dangerous. 

"3. Voluntarily remaining or continuing in the 

face of the known dangerous condition. 

"4. Injury resulting as the usual or probable 

consequence of this dangerous condition. 

"If you find all four of the above factors did exist 

at the time of the plaintiff's injury, he cannot 

recover .'I

This instruction is drawn primarily from the Montana Jury 

Instruction Guide (MJIG). However here the MJIG approved instruction was modified by inclusion of the language, "you are 
not to consider whether or not the plaintiff exercised due 

care for his own safety1'. Defendant contends the instruction 

as modified is an inLorrect statement of the law, confusing and 

misleading to the jury and therefore it was error to give it. 

Defendant urges its proposed instruction No. 7, taken from 

the 1975 Revision of the California Jury Instructions (Civil), 

was a correct statement of the law of assumption of the risk, 

and should have been given. 

The scope of our review in this case is well defined. 

This Court held in numerous cases, including Fox v. Fifth 

West, Inc., (1969), 153 Mont. 95, 101, 454 P.2d 612, that: 

"* * * instructions'must be considered in their entirety, and to determine whether instructions were 

properly given or refused this Court will read them 

in connection with other instructions given and 

consider them in the light of the evidence introduced." 

153 Mont. 101. 

Similarly, an error in any instruction considered in isolation 

may be cured by reviewing the charge as a whole. Northern Pac. 

R. Co. v. Lynch, 79 F. 268, 173 U.S. 701, 19 S.Ct. 878, 43 L.Ed. 

1185 (1899). 

A review of the instruction finds it improperly inserts 

into the case elements of contributory negligence that could 

cause jury confusion. Therefore in the interests of clarification, we disapprove of its use in future cases. 

As previously noted herein, in an instruction on assumption 

of risk, the subjective standard will be used and the words 

"actual" or "implied" will not be used. See: Prosser, Law of 

Torts, 4th ed., 568 Assumption of Risk, pp. 445-452. 

The giving of Instruction No. 10 as to this defendant 

does not constitute reversible. error. ~efendant's burden of 
proof was clearly reduced due to the deficiency of the instruction. Under the given instruction, defendant could have argued 

plaintiff had implied knowledge, creating a measure for plaintiff's behavior based upon the standard of the "reasonable manr' 

as an alternative to a showing of actual, subjective knowledge. 

Such a standard is inconsistent with the defense of assumption 

of the risk in the context of strict liability theory, as 

previously noted. If anything, the error as discussed enured 

to the benefit of defendant in this case. 

An error in an instruction which is favorable to the 

objecting party is harmless error. Harding v. H. F. Johnson, 

Inc., (1952), 126 Mont. 70, 244 P.2d 111; Broberg v. Northern 

Pac. Ry. Co., (1947), 120 Mont. 280, 182 P.2d 851. The trial 

court's refusal to give defendant's proposed instruction on 

assumption of the risk was not prejudicial error, as defendant 

was not thereby deprived of the potential defense. Wollan v. 

Lord, (1963), 142 Mont. 498, 385 P.2d 102. In fact, defendant 

was able under the given instruction to introduce evidence and 

argue the defense under a burden significantly reduced in comparison to the standard established above. 

Any error resulting from inclusion of the phrase concerning "due care" is also harmless, in view of the evidence 

negating the defense of assumption of the risk altogether, and 

the charges taken as a whole. Fox v. Fifth West, Inc., supra. 

Defendant has demonstrated no real prejudice in this regard. 

Issue 6. Defendant also alleges as error the trial court's 

refusal of its proposed instruction No. 5 concerning the elements 

of proof in a strict liability action. 

Defendant's proposed instruction, in essence, sets forth 

the elements of proof required by Brandenburger. However, the 
proposed instruction includes the following additional elements 

as matters which must be affirmatively established by plaintiff: 

"First: The defendant placed the Grain-0-Vator 

in question on the market for use, and the 

defendant knew, or in the exercise of reasonable 

care should have known, that the particular Grain0-Vator would be used without inspection for defects in the particular part, mechanism or design 

which is claimed to have been defective, 

"Third: The plaintiff was unaware of the claimed 

defect." 

Defendant admits the "inspection for defects" matter is 

not an element of the law of strict liability as set forth in 

2 Restatement of Torts 2d, 5402A. The rule has its origin in 

the landmark products liability case Greemnan v. Yuba Power 

Products, Inc., (1962), 27 Cal.Rptr. 697, 377 P.2d 897, and 

is generally limited in application to subsequent California 

cases. 

We conceive of no policy which would justify imposing an 

increased burden of proof upon a products liability plaintiff. 

The manufacturer is sufficiently insulated from absolute liability by a plaintiff's required adherence to the burden of 

proof heretofore outlined in this opinion. No error could result 

from refusal to instruct as to an element of proof not imposed 

by the governing law. 

Further, plaintiff's lack of awareness of a defect 

cannot be. considered an element plaintiff must affirmatively 

establish. Rather, plaintiff's awareness of the defect is a 

matter going to the affirmative defense of assumption of the 

risk. As such, the burden of alleging and proving "awareness" 

is upon the defendant. The trial court cannot be placed in 
error for instructing as it did regarding the essential elements 

of strict liability. 

Issue 7. Finally, defendant advances error in the trial 

court's admission, over objection, of plaintiff's offered movie 

exhibit. 

The movie, offered as demonstrative evidence intended to 

illustrate plaintiff's testimony, depicts plaintiff's son 

mounting the Grain-0-Vator involved in the accident and taking 

the precise steps plaintiff asserts he took at the time of the 

accident. For purposes of illustration, the springs were 

removed from the excess door. As plaintiff's son stepped down 

towards the excess door, it was pulled open by way of a thin 

line. Defendant contends that the circumstances of the demonstration differed radically from those at the time of the accident, 

causing it to appear to the jury as if the excess door would 

suddenly snap and remain open. 

However, defendant ignores the fact the jury was cautioned 

the film was intended as demonstrative evidence only, and was 

instructed in detail as to the changes in conditions between 

the actual occurrence and the demonstration. The exhibit was 

offered after a reading of the following statement to the jury: 

"This movie is intended to illustrate how the 

plaintiff, Deane Brown, thinks this accident 

happened. The machine had no feed in it when 

the movie was taken. At the time of the accident, 

the lid over the auger had springs attached to it 

and they are not on the machine in the movie. The 

lid over the auger is hinged like it was at the time 

of the accident, that is, the lid was hinged at the 

bottom and swung open from the top as shown in the 

movie. During the movie, the lid is pulled open with 

fish line to demonstrate how it could move from its 

point of pivot. This of course is not intended to 

show you what caused it to open at the time of the 

accident, nor is the jury to use the film in any 

way in deciding what caused the lid to open at the 

time of the accident. Again, the purpose of the 

movie is only to illustrate how the plaintiff believes the accident happened." 
The movie was admitted through plaintiff's own testimony, 

with counsel establishing additional foundation elements of 

identification and accuracy. 

Generally, allowing demonstrative evidence is within the 

discretion of the trial judge, and is subject to review only 

upon a showing of a manifest abuse of discretion. Gunderson 

v. Brewster, (1970), 154 Mont. 405, 466 P.2d 589. Particularly 

as regards movies of reconstructions, it has been held that 

such movies are admissible if shown to be accurate and relevant, 

and any change in conditions is adequately explained. Greenich 

v. Southern Pacific Company, 189 Cal.App.2d 100, 11 Cal.Rptr. 

235 (1961), 29 Am Jur 2d Evidence, 5801. 

The trial court is imbued with wide discretion in admitting 

any diagram, map or photograph. Recently this Court in State 

v. Sharbono, (1977) , Mont . , 563 P.2d 61, 34 St.Rep. 196, 

considered a similar objection to the use of a ''burn film" 

offered by the defense. Issue was taken to the trial court's 

refusal to allow the showing of the film, and the trial court's 

ruling was upheld by this Court citing Gobel v. Rinio, (1948), 

122 Mont. 235, 200 P.2d 700, and Leary v. Kelly Pipe Co., (1976), 

Mon t . 9 549 P.2d 813, 33 St.Rep. 413. 

We conclude the judgment of the District Court entered upon 

the verdict of the jury was correct, and it is affirmed. 
We Concur: 

Justices. 

Mr. Justice Frank I. Haswell, specially concurring: 

I concur in the result but not in all that is said in the 

foregoing opinion. 

My principal disagreement concerns the discussion of Issue 5 

relating to the defense of assumption of risk. As pointed out in 

the majority opinion contributory negligence is not a defense 

to a products liability case,but assumption of risk is a complete bar to recovery in such a case. The court's Instruction 

No. 10 read: 

"You are instructed that assumption of risk is 

voluntarily placing oneself in a position to chance 

known hazards. If a person has assumed the risk, 

he cannot recover for any injury or damage sustained 

by him. In determining whether or not the plaintiff 

assumed a risk, you are not to consider whether or 

not the plaintiff exercised due care for his own safety, 

but must find the following factors existed: 

"1. That he had knowledge, actual or implied, 

of the particular condition. 

"2. That he appreciated the condition as 

dangerous. 

"3. Voluntarily remaining or continuing in the 

face of the known dangerous condition. 
"4. Injury resulting as the usual or probable 

consequence of this dangerous condition, 

"If you find all four of the above factors did exist 

at the time of the plaintiff's injury, he cannot 

recover. 11 

In my view this instruction is a correct statement of the 

law. The instruction is the standard WIG instruction used in 

the trial courts of this state for many years excepting that 

the phrase "you are not to consider whether or not the plaintiff 

exercised due care for his own safety" has been added. This 

addition conforms to existing law -and makes clear to the jury 

that it is not to judge plaintiff's conduct by contributory 

negligence standards. 

As the United States District Court observed in Deeds v. 

United States, (D.Montana 1969), 306 F.Supp. 348, 362: 

"* * * Contributory negligence arises from a 

lack of due care. Assumption of risk will bar 

recovery regardless of the fact that plaintiff 

may have acted with due care. I' 

I have no objection to striking the words "actual or 

implied" from the instruction in the future in the interest 

of clarity. It may be that jurors are confusing "implied" 

knowledge with "constructive" knowledge which will not support 

the defense of assumption of risk. 

There is also other language in the discussion of Issue No.4 

that improperly injects contributory negligence into the case, 

egg., "(1) Was it unreasonable for plaintiff to act as he did?" 

pJustice. 
Mr. Justice Daniel J. Shea specially concurring: 

I agree with the result reached by the majority and with 

most of its conclusions. However, scattered throughout the 

opinion there is loose language that could cause some confusion. 

I will confine my remarks to that which I believe might cause 

future confusion. 

Language in several places implies the plaintiff must 

prove both that the product was "defective" and "unreasonably 

dangerous1'. It is virtually impossible to define "defective" 

in the context of the various kinds of products liability cases. 

Moreover, a careful reading of 2 Restatement of Torts 2d, $402 A 

and the comments thereto, leads me to believe that they are not sep-- 

arate elements. The thrust of the doctrine of strict liability 

is stated in Comment g. which provides in pertinent part: 

"The rule [of strict liability] stated in this 

Section applies only where a product is, at the 

time it leaves the seller's hands, in a condition 

not contemplated by the ultimate consumer which 

will be unreasonably dangerous to him." (Emphasis 

added. ) 

Comment j. provides in pertinent part: 

"In order to prevent the product from being 

unreasonably dangerous, the seller may be required to give directions or warning, on the 

container, as to its use." (~mphasis added). 

I emphasize the above language because I believe that 

depending on the nature of the products liability claim, it may 

be confusing to the jury to speak both of "defective" products 

and "unreasonably dangerous" products. The basic thrust of 

5 402 A, 2 Restatement of Torts 2d, can be maintained by concentrating on the "unreasonably dangerous" condition of the 

product . 
I concur with this Court's opinion stating that recovery 

is allowed where the condition complained of is open and obvious 

as well as latent. However, because of the confining language 

of the Restatement, care must be taken in instructing the jury. 

A close reading of 2 Restatement of Torts 2d, 5 402 A and the 

comments thereto, reveals only silence as to whether an open 

and obvious condition can give rise to a strict liability claim. 

The definition of "unreasonably dangerous" contained in Comment i . 

of 5 402 A, is made in the context of situations where the condition complained of is latent,' it states: 

11 i. Unreasonably dangerous. * * * The article 

sold must be dangerous to an extent beyond that 

which would be contemplated by the ordinary consumer 

who purchases it, with the ordinary knowledge common 

to the community as to its characteristics. * * *I1 

In the present case the danger was latent, and the instruction may have been appropriate. However, it would not be appropriate in a situation where the danger was one that was open and 

obvious. I believe the above instruction given in a situation 

where the danger is open and obvious, would be tantamount to 

telling the jury to return a verdict for the defendant, thereby 

effectively precluding any realistic hope of recovery. Accordingly, in such situations, the trial courts should adopt a different 

instruction. 

I agree with the overall position taken by the Court on 

the question of assumption of risk. However, concerning the 

Instruction questioned by the defendant, I feel that in most 

cases it is best to refrain from giving negative instructions to 

the jury. The inserced language concerning contributory negligence was negative in character, i.e., telling the jury what did 

not have to be proved. In most cases, I believe, it is 

sufficient to set out what each party must prove to sustain its 
burden of proof, and to refrain from telling the jury what 

each party does not have to prove. In any event, I fail to 

see in what way the defendant was prejudiced because the statement 

of law was accurate. 

There is language in the opinion that implies the subjective 

test of assumption of risk is being confined to strict liability 

cases only. The opinion states: 

"Henceforth, in product liability cases the 

defense of assumption of risk will be based on 

a subjective standard rather than that of the 

reasonable man test ." 

It has been my understanding that, at least since D'Hoodge v. 

McCann,(1968), 151 Mont. 353, 363, 443 P.2d 747, we have applied 

the subjective test to assumption of risk. There, we held 

assumption of risk "is governed by the subjective standard of 

the plaintiff himself rather than the objective standard of 

the reasonable man * * *." 

The problem was not with the test we adopted, but with 

the Instruction given to the jury which allowed it to find that 

plaintiff could have the knowledge required by assumption of risk, 

if the knowledge was either actual or implied. The word "implied" 

does ring of constructive knowledge as noted by Justice Haswell 

in his concurring opinion, and I agree it should be deleted. 

However, these words should be eliminated from all instructions 

where assumption of risk is asserted as a defense, and not 

solely in strict liability cases. 

A defendant is not bound by the plaintiff's testimony simply 

because the words "or implied" are eliminated from the definition 

of assumption of risk. Even though a plaintiff testifies he was 

not aware of the particular condition involved or did not appreciate 

the danger, circumstantial knowledge may show the plaintiff had 
the actual (subjective) knowledge. If the facts are such 

that would lead a jury to believe that the plaintiff did not 

tell the truth, the jury is free to reject the plaintiff's 

testimony simply by applying the standard instructions on 

credibility of witnesses and weighing the evidence. It is one 

thing to argue the jury should disbelieve the plaintiff where 

he testifies that he did not have knowledge of the particular 

condition; it is yet another to argue that a reasonable man 

should have known of the particular condition involved. The 

knowledge that a man "should have had'' has no place in the 

doctrine of assumption of risk where the cornerstone of the 

doctrine is plaintiff's consent. To allow it comes dangerously 

close to permitting a defendant to argue contributory negligence 

under the guise of assumption of risk. 

I also do not agree with the statement in the majority 

opinion that "seldom would a products liability plaintiff admit 

through his own testimony that he had knowledge of the danger and 

appreciated the risk involved." Certainly the human nature of 

plaintiffs in general has not been shown to be so dishonest that 

it is customary for them to lie in support of their claims. 

Furthermore, even if a plaintiff admitted he had knowledge of 

the danger and appreciated the risk involved, it still would 

not defeat his claim. We have adopted the definition of assumption 

of risk as contained in 2 Restatement of Torts 2d, 5 402 A, Comment 

n. which provides in pertinent part: 

"* * * If the user or consumer discovers the 

defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the 

product and is injured by it, he is barred from 

recovery .'I (Emphasis added.) 

Accordingly, recovery would still be allowed if the plaintiff 

did not proceed unreasonably to make 

n 

use of the product.