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Yardman v. San Juan Downs Inc.8/23/1995
trade as a jockey, she must do so at a race track. The existence and weight, [however], to be given to extenuating circumstances are questions of fact.
. We think the rationale articulated in Thompson concerning the necessity of the fact finder to apportion the amount of fault, if any, based on the plaintiff's purported voluntary exposure to a known hazard is also applicable in the instant case.
13. Plaintiff argues that Thompson does not apply here, however, because there was insufficient evidence to warrant giving Defendants' requested instruction. Our review of the record leads us to a contrary Conclusion. Defendants raised as an affirmative defense their claim that Plaintiff's conduct was negligent, thus precluding any recovery "or reducing it by that percentage extent attributable to his own negligence in accordance with the law of comparative fault."
14. Defendants also presented evidence indicating that Plaintiff rode in approximately seventy-five races at San Juan Downs prior to his accident and had been around the track for a period of approximately three years. Other witnesses, including Plaintiff, testified that prior to his accident Plaintiff had ridden in seventeen races in Grand Junction, Colorado. Plaintiff had also ridden at other tracks in New Mexico: four in Raton, one in Santa Fe, and two in Albuquerque. Additionally, Defendants presented the testimony of two jockeys, who voiced their opinion that because of the number of races Plaintiff participated in at San Juan Downs and other tracks, he should have been aware of any hazards posed by the condition of the track and its rail.
15. Defendants contend this was sufficient to create a factual issue concerning whether Plaintiff was reasonably placed on notice of the nature and hazard presented by the track rail and track condition so as to warrant submission of their requested instruction to the jury to enable it to evaluate Defendants' comparative negligence defense and the apportionment, if any, of fault. Cf. ) (issue of whether a hazard should have reasonably been anticipated and amount, if any, of comparative fault to be assessed against the plaintiff are factual issues to be resolved by fact finder). A party is entitled to an instruction on its theory of the case when there is evidence to support such instruction. See ), cert. denied, 106 N.M. 7, 738 P.2d 125 (1987); . Based upon the matters listed above, we think it is clear that Defendants presented sufficient evidence in the instant case so as to require the submission of an instruction on this aspect of Defendants' claim of comparative negligence. See . The trial court's refusal to give Defendants' requested instruction necessitates reversal and remand for a new trial.
16. Although our Disposition of this issue requires that this case be reversed and remanded for a new trial, in furtherance of judicial economy we address other claims raised by the parties that may arise on retrial.
(b) Instruction Re Taxes and Insurance
17. Defendants also complain that the trial court erred in giving an instruction, patterned in part upon SCRA 1986, 13-208 (Repl. 1991), which stated that the jury was not to consider whether the County had insurance or the effect of its verdict on county taxes. This instruction was given because during voir dire the subject of insurance came up in the responses given by several prospective jurors. In response to questioning on voir dire, one prospective juror voiced a concern that insurance premiums might be increased if a large verdict were rendered. Because this statement occurred within the hearing of some of the other prospective jurors, who were subsequently selected to serve on th
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