Gerrard v. Harvey & Newman Drilling Company , 59 N.M. 262 ( 1955 )

LUJAN, Justice

(specially concurring).

In so far as the opinion of Mr. Justice KIKER rests a reversal and award of a new trial on error in the court’s instruction No. 5, objected to at the time by plaintiff, enumerating instances of scheduled injuries amounting to total disability, I concur. Since the plaintiff’s injury was not of that kind or type, I am unable to rid myself of a feeling that giving the instruction tended to confuse the jury and, hence, resulted in prejudice to the plaintiff. I do not feel the facts of this case warrant application of the doctrine of fundamental error. But for the reason stated, I concur in the award of a new trial.

COMPTON, C. J., concurs.