unavoidable accident instruction in New Mexico

1963This fundamental purpose must be read into any and all rules on the subject. * * , H* Hi * Jp Hi ■ “ * * ■ * But, where the court has instructed erroneously on the subject, although a correct instruction has been tendered on" the point, if it leaves it doubtful whether the trial judge’s mind was actually alerted thereby to the defect sought to be corrected by the requested instruction, the error is not preserved unless, in addition, the specific vice in the instruction given is pointed out to the trial court by proper objection thereto.” We followed the above rule in Lucero v. Torres, 67 N.M.

1963This fundamental purpose must be read into any and all rules on the subject. * * , H* Hi * Jp Hi ■ “ * * ■ * But, where the court has instructed erroneously on the subject, although a correct instruction has been tendered on" the point, if it leaves it doubtful whether the trial judge’s mind was actually alerted thereby to the defect sought to be corrected by the requested instruction, the error is not preserved unless, in addition, the specific vice in the instruction given is pointed out to the trial court by proper objection thereto.” We followed the above rule in Lucero v. Torres, 67 N.M.

1965Baros v. Kazmierczwk, 68 N.M. 421 , 362 P.2d 798 ; Zamora v. Smalley, supra; and Lucero v. Torres, supra. We must again caution, as we did in both the Lucero and Baros cases, that it is not every motor vehicle accident case that warrants the giving of an unavoidable accident instruction.

1965Baros v. Kazmierczwk, 68 N.M. 421 , 362 P.2d 798 ; Zamora v. Smalley, supra; and Lucero v. Torres, supra. We must again caution, as we did in both the Lucero and Baros cases, that it is not every motor vehicle accident case that warrants the giving of an unavoidable accident instruction.

1968Stambaugh v. Hayes, supra; Martin v. Gomez, 69 N.M. 1 , 363 P.2d 365 , and Horrocks v. Rounds, 70 N.M. 73 , 370 P.2d 799 , indicate that the definition of unavoidable accident should be followed by its application on an assumed set of facts.

1968Stambaugh v. Hayes, supra; Martin v. Gomez, 69 N.M. 1 , 363 P.2d 365 , and Horrocks v. Rounds, 70 N.M. 73 , 370 P.2d 799 , indicate that the definition of unavoidable accident should be followed by its application on an assumed set of facts.

1993In Alexander, we were presented with the question whether the unavoidable accident rule, calling for a jury instruction when the jury could conclude that the accident had occurred without having been proximately caused by the negligence of either party, should be abolished. 84 N.M. at 717-18 , 507 P.2d at 778-79 .

1993In Alexander, we were presented with the question whether the unavoidable accident rule, calling for a jury instruction when the jury could conclude that the accident had occurred without having been proximately caused by the negligence of either party, should be abolished. 84 N.M. at 717-18 , 507 P.2d at 778-79 .

1971Flanary v. Transport Trucking Stop, 78 N.M. 797 , 438 P.2d 637 (Ct.App.1968).

1971Flanary v. Transport Trucking Stop, 78 N.M. 797 , 438 P.2d 637 (Ct.App.1968).

1968Relying upon Stambaugh v. Hayes, 44 N.M. 443 , 103 P.2d 640 , plaintiffs argue that the unavoidable-accident instruction given is insufficient because it fails to advise the jury specifically how it should be applied to the facts.

1968Relying upon Stambaugh v. Hayes, 44 N.M. 443 , 103 P.2d 640 , plaintiffs argue that the unavoidable-accident instruction given is insufficient because it fails to advise the jury specifically how it should be applied to the facts.

1968Stambaugh v. Hayes, supra; Martin v. Gomez, 69 N.M. 1 , 363 P.2d 365 , and Horrocks v. Rounds, 70 N.M. 73 , 370 P.2d 799 , indicate that the definition of unavoidable accident should be followed by its application on an assumed set of facts.

1968Stambaugh v. Hayes, supra; Martin v. Gomez, 69 N.M. 1 , 363 P.2d 365 , and Horrocks v. Rounds, 70 N.M. 73 , 370 P.2d 799 , indicate that the definition of unavoidable accident should be followed by its application on an assumed set of facts.

1968Lucero v. Torres, supra; Gould v. Brown Construction Co., 75 N.M. 113 , 401 P.2d 100 (1965).

1968Lucero v. Torres, supra; Gould v. Brown Construction Co., 75 N.M. 113 , 401 P.2d 100 (1965).

1967In that case we said: “ * * * The proper test is whether there is- any evidence from which the jury could possibly conclude that the accident occurred without-the negligence of anyone being the proximate cause. * * ” See Gallegos v. McKee, 69 N.M. 443 , 367 P.2d 934 ; and Lucero v. Torres, 67 N.M. 10 , 350 P.2d 1028 .

1967In that case we said: “ * * * The proper test is whether there is- any evidence from which the jury could possibly conclude that the accident occurred without-the negligence of anyone being the proximate cause. * * ” See Gallegos v. McKee, 69 N.M. 443 , 367 P.2d 934 ; and Lucero v. Torres, 67 N.M. 10 , 350 P.2d 1028 .

1967Our latest case discussing the propriety of giving an unavoidable accident instruction is Grubb v. Wolfe, 75 N.M. 601 , 408 P.2d 756 .

1967Our latest case discussing the propriety of giving an unavoidable accident instruction is Grubb v. Wolfe, 75 N.M. 601 , 408 P.2d 756 .

1964The sole question presented under this claim of error is whether there is evidence from which the jury could conclude that the accident occurred without the negligence of anyone being the proximate cause, Zamora v. Smalley, 68 N.M. 45 , 358 P.2d 362 ; Horrocks v. Rounds, 70 N.M. 73 , 370 P.2d 799 ; Baros v. Kazmierczwk, 68 N.M. 421 , 362 P.2d 798 , keeping in mind that we are bound to view it in a light most favorable to the prevailing party (defendant).

1964The sole question presented under this claim of error is whether there is evidence from which the jury could conclude that the accident occurred without the negligence of anyone being the proximate cause, Zamora v. Smalley, 68 N.M. 45 , 358 P.2d 362 ; Horrocks v. Rounds, 70 N.M. 73 , 370 P.2d 799 ; Baros v. Kazmierczwk, 68 N.M. 421 , 362 P.2d 798 , keeping in mind that we are bound to view it in a light most favorable to the prevailing party (defendant).

1962Hartford Fire.Insurance Company v. Horne, supra. In his fourth point appellant would again argue the question of the propriety of an unavoidable accident instruction, and urges upon us the reasoning of the California Supreme Court in Butigan v. Yellow Cab Co., 49 Cal.2d 652 , 320 P.2d 500 , 65 A.L.R.2d 1 .

1962Hartford Fire.Insurance Company v. Horne, supra. In his fourth point appellant would again argue the question of the propriety of an unavoidable accident instruction, and urges upon us the reasoning of the California Supreme Court in Butigan v. Yellow Cab Co., 49 Cal.2d 652 , 320 P.2d 500 , 65 A.L.R.2d 1 .

1960Nevertheless, since the Butigan case, in Martz v. Ruiz, 1958, 158 Cal.App.2d 590 , 322 P.2d 981 , and in Brenner v. Beardsley, 1958, 159 Cal.App.2d 304 , 323 P.2d 841 , the California court used language that intimates that the giving of an unavoidable accident instruction might not be error where there was evidence that the accident resulted from a cause other than negligence.

1960Nevertheless, since the Butigan case, in Martz v. Ruiz, 1958, 158 Cal.App.2d 590 , 322 P.2d 981 , and in Brenner v. Beardsley, 1958, 159 Cal.App.2d 304 , 323 P.2d 841 , the California court used language that intimates that the giving of an unavoidable accident instruction might not be error where there was evidence that the accident resulted from a cause other than negligence.

1960Also, in Rayner v. Ramirez, 1958, 159 Cal.App.2d 372 , 324 P.2d 83 , and in Emerton v. Acres, 1958, 160 Cal.App.2d 742 , 325 P.2d 685 , it was intimated that a proper case for the giving of an unavoidable accident instruction might exist where there is evidence which would support the finding of an unavoidable accident.

1960Also, in Rayner v. Ramirez, 1958, 159 Cal.App.2d 372 , 324 P.2d 83 , and in Emerton v. Acres, 1958, 160 Cal.App.2d 742 , 325 P.2d 685 , it was intimated that a proper case for the giving of an unavoidable accident instruction might exist where there is evidence which would support the finding of an unavoidable accident.

1960Also, in Rayner v. Ramirez, 1958, 159 Cal.App.2d 372 , 324 P.2d 83 , and in Emerton v. Acres, 1958, 160 Cal.App.2d 742 , 325 P.2d 685 , it was intimated that a proper case for the giving of an unavoidable accident instruction might exist where there is evidence which would support the finding of an unavoidable accident.

1960Also, in Rayner v. Ramirez, 1958, 159 Cal.App.2d 372 , 324 P.2d 83 , and in Emerton v. Acres, 1958, 160 Cal.App.2d 742 , 325 P.2d 685 , it was intimated that a proper case for the giving of an unavoidable accident instruction might exist where there is evidence which would support the finding of an unavoidable accident.

1960Nevertheless, since the Butigan case, in Martz v. Ruiz, 1958, 158 Cal.App.2d 590 , 322 P.2d 981 , and in Brenner v. Beardsley, 1958, 159 Cal.App.2d 304 , 323 P.2d 841 , the California court used language that intimates that the giving of an unavoidable accident instruction might not be error where there was evidence that the accident resulted from a cause other than negligence.

1960Nevertheless, since the Butigan case, in Martz v. Ruiz, 1958, 158 Cal.App.2d 590 , 322 P.2d 981 , and in Brenner v. Beardsley, 1958, 159 Cal.App.2d 304 , 323 P.2d 841 , the California court used language that intimates that the giving of an unavoidable accident instruction might not be error where there was evidence that the accident resulted from a cause other than negligence.

1960Gaylord v. Schwartz, 46 Wash.2d 315 , 281 P.2d 247 , was a case involving a thirteen-year-old boy who was riding a bicycle on a raised wooden sidewalk along one side of a bridge.

1960Gaylord v. Schwartz, 46 Wash.2d 315 , 281 P.2d 247 , was a case involving a thirteen-year-old boy who was riding a bicycle on a raised wooden sidewalk along one side of a bridge.