I dissent because I deem that the instruction on unavoidable accident was properly given under the pleadings and evidence in this case and the granting of a new trial based solely on the giving of this instruction erroneous.
An unavoidable accident is one which is an unanticipated and unexpected occurrence which no reasonable person would likely have foreseen and for which no one is to blame. St Louis-San Francisco Ry. Co. v. Bryan, 195 Ark. 350, 112 S.W. 2d 641. This court has defined an unavoidable accident in automobile collision cases to be a collision occurring without negligence on the part of either driver. Caldwell v. McLeod, 235 Ark. 799, 362 S.W. 2d 436. It has been held that the instruction on unavoidable accident should be given when there is evidence tending to prove that the injury resulted from some cause other than the negligence of the parties. Elmore v. Dillard, 227 Ark. 260, 298 S.W. 2d 338; Rhoden v. Lovelady, 239 Ark. 1015, 395 S.W. 2d 756. The giving of the instruction is error only where the sole question is whether one or more of the parties is guilty of negligence. Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872; Burton v. Bingham, 239 Ark. 436, 389 S.W. 2d 876; Oklahoma Tire & Supply Co. v. Bass, 240 Ark. 496, 401 S.W. 2d 35.
The ease now before ns falls in the category of those where there is considerable evidence tending to prove that the series of collisions involved resulted from a cause other than the negligence of any of the parties involved. It does not involve the simple matter of determining which of the parties was negligent. As pointed out in the majority opinion, five automobiles were involved. There were the usual counterclaims and cross complaints. The defense of unavoidable accident was pleaded by several of the parties.
Geraldine Mills, the plaintiff, testified that there was no evidence of snow or ice either on her porch when she left home or on the highway leading up to where the collisions occurred. She first discovered the condition when she applied her brakes, after she saw cars colliding ahead when halfway across the bridge. One of the vehicles involved overtook her at the bridge.
Mrs. Beck, a defendant driver, was on the bridge and about to pull over into the left-hand lane because of seeing the taillights on Mrs. Cannor’s automobile flashing, before she noticed there was ice on the bridge. She also was unaware of this condition until she applied her brakes and started skidding. She had traveled for some distance on the highway and noticed nothing to indicate that there would be ice on the bridge.
Mrs. Cannor testified that she had crossed a number of bridges and had seen no signs of ice on the highway before she reached the bridge on which the collisions occurred. She drove onto this bridge and discovered the icy condition when her car started sliding toward her right. She said that as she approached the bridge, it looked like all of the bridges she had previously crossed on which there had been no ice. The same sign warning drivers to watch for ice on bridges had appeared on the approaches to all the bridges she had previously crossed and on which there was no ice.
Miss Hill did not encounter any icy conditions on the highway before she reached the bridge and did not see any indication of icing on the bridge. When she saw cars ahead of her on the bridge start to slide around, she tapped her brakes. She stated that it came as a complete shock to her when her car started skidding.
Mrs. Cooper, a passenger in the car driven by her daughter, Geraldine Mills, testified that the highway was clear, that there was no ice upon it and that there was no indication of any slick spots until the car in which she was riding started slipping on the bridge.
Mrs. Pilcher, a defendant and counter claimant, was not even aware that there had been a little snow earlier in the morning. When she was on the bridge she saw a ear in front of her also on the bridge and this caused her to tap her brakes. Her car then seemed to go faster. She testified that there was no prior indication to her of any ice on the highway or bridge.
Wesley Youngman was the driver of one of the cars involved in the collisions. Strangely enough, he was not a party to the action. The first time he suspected any trouble was when the lights on Mrs. Beck’s car started blinking and the car started sliding back and forth across the center line about 50 feet in front of him.
While there was evidence which would have sustained a finding of negligence on the part of one or some, or perhaps all of the drivers involved, there was ample substantial evidence on which the jury might properly find that the accident was not proximately caused by the negligence of any of the parties, or, in other words, that the injuries involved resulted from some cause other than the negligence of any of, ,the parties and that the occurrence was one which a reasonable person would not likely have foreseen.
In holding* that it was error to refuse the' instruction in Industrial Farm Home Gas Co. v. McDonald, 234 Ark. 744, 355 S.W. 2d 174, we said:
“ * * * Accordingly, we have both parties making statements that certainly bring into issue the question of whether the collision was an unavoidable accident. In fact, the quoted testimon3r of the two principals, together with the testimony about the weather conditions, and the admitted slow speed of each vehicle, was sufficient to warrant the giving of the instruction.”
The cases in which it has been held that the instruction was properly refused or erroneously given have been two-party cases, or cases in which there was no evidence to show an unavoidable accident. See Bennett v. Staten, 229 Ark. 47, 313 S.W. 2d 232; Sullivan v. Fanestiel, 229 Ark. 662, 317 S.W. 2d 713; Burton v. Bingham, 239 Ark. 436, 389 S.W. 2d 876; Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872; Rhoden v. Love-lady, 239 Ark. 1015, 395 S.W. 2d 756; Norman v. Gray, 238 Ark. 617, 383 S.W. 2d 489; Oklahoma Tire & Supply Co. v. Bass, 240 Ark. 496, 401 S.W. 2d 35. In several of these cases it was specifically pointed out that the incident involved would not have occurred unless someone was negligent. An analysis of our cases leads me to the conclusion that the real basis for holding the instruction inapplicable is that the incident before the court could not have occurred except for some: party’s negligence, or, stated conversely, evidence indicating that the cause of the incident was unavoidable is absent.
In one of the more recent decisions holding that the refusal of this instruction was not error, both the pleadings and the evidence indicated that the accident was caused by the negligence of one or both of the parties and was not inevitable. It was unequivocally stated that it could not have happened without someone having been negligent. Rhoden v. Lovelady, supra. In discussing the case of Houston v. Adams, supra, the court there stated that the exceptional circumstances making the instruction permissible exist where the alleged injury resulted from some cause other than the negligence of either party. As demonstrated, there was ample substantial evidence here to support the jury finding that the proximate cause was something other than the negligence of any of the parties to the action. The fact that there would also have been substantial evidence on which to base a contrary finding should be of no consequence. In my opinion, it is not necessary that the facts be such as would warrant a directed verdict on the basis of unavoidable accident to warrant the giving of the instruction.
If this case is not one where the giving of the instruction is warranted, it is difficult to conceive of one where it would be. The situations involving a sudden, unanticipated coronary attack or act of God, suggested in Lewis v. Crocheit, 243 Ark. 377, 420 S.W. 2d 89, are not fundamentally different in principle from defenses asserted here. The principle involved in each factual situation is a contention that there was a proximate cause other than the negligence of any party. This is the very situation mentioned as “exceptional circumstances” in the Rhoden case.
The instruction was particularly appropriate in a multi-party action such as this, where a jury might well believe, in the absence of such an instruction, that they were required to fix the blame on one or more of the drivers.
I am authorized to state that Brown, J., joins in this dissent.