(specially concurring).
I specially concur.
A. Instruction No. 7 was erroneous, but the error was not preserved for review.
Plaintiff properly objected to instruction No. 7 for the reason that “it does not apply to any parties to this suit, and that such issue was not concerned with the proximate cause of the accident in question.”
This statutory instruction refers to a vehicle at an intersection or private roadway preparing to make a turn. The driver must signal his turn. The statute applies to the vehicle in “front” of plaintiffs vehicle. It does not apply to plaintiff or defendant. Plaintiff had no duty to signal a turn. Neither did defendant. The court did not instruct the jury that this statute was applicable to the “front” vehicle and the jury could find a violation thereof was a proximate cause of the accident. The -instructions were silent on the “front vehicle”. The only issues presented to the jury were: (1) Did the defendant have control of his car ? (2) Was the defendant driving too fast for the traffic and road conditions then and there existing ?
Furthermore, subsection (c) of the statute, set forth in instruction No. 7, applies to the plaintiff. To establish contributory negligence, he had a duty to give an appropriate signal to the defendant before stopping or suddenly decreasing the speed. This subsection is applicable as an affirmative defense by defendant that plaintiff was guilty of contributory negligence. At the close of the case, plaintiff moved that the affirmative defense of contributory negligence be stricken. The defendant agreed. It was stricken. Defendant gave up its affirmative defense of contributory negligence.
This instruction was plain reversible error. Was it preserved for review?
The majority opinion says: “The trial court overruled plaintiffs’ objection to the court’s instruction No. 7 . . .” A search of the record does not disclose this fact. The error is not preserved for review. For two years, I have tried to educate trial lawyers in the art of preserving error when objections are made to jury instructions. Valencia v. Beaman, 85 N.M. 82, 509 P.2d 274 (Ct.App.1973); May v. Baklini, 85 N.M. 150, 509 P.2d 1345 (Ct.App.1973) (Sutin, J., concurring in part and dissenting in part).
I suggest that trial lawyers read judicial opinions and make notes of pertinent procedural points such as this one. In the present case, even if error was preserved, it would only have succeeded in getting a dissenting opinion. But, perhaps, if these objections had been properly presented to the trial court, the instruction would not have been given to the jury. It is too late in the day to raise this matter for the first time on appeal.
This error could be preserved if trial judges would request that attorneys make all objections to instructions on the record in the presence of the court and obtain rulings thereon. When a trial court refuses instructions, he should give a reason therefor.
The Supreme Court has adopted New Mexico Rules of Evidence. Sections 20-4-101 to 20-4-1102, N.M.S.A.1953 (Repl. Vol. 4, 1973 Supp.). Rule 103 applies to Rulings on Evidence. Subsection (d) provides :
Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge. [Emphasis added]
Instructions to juries are often as important in the trial of cases as the admission or exclusion of evidence. The doctrine of “plain error” which affects the substantial rights of a party should be applicable to instructions. The adoption of this doctrine rests in the Supreme Court.
By this opinion I do not declare that instruction No. 7 affected such substantial rights of plaintiff, that the Supreme Court would call into play its inherent power to prevent fundamental injustice making a virtue of necessity. Gonzales v. Rivera, 37 N.M. 562, 25 P.2d 802 (1933); Saiz v. City of Albuquerque, 82 N.M. 746, 487 P.2d 174 (Ct.App.1971) (Sutin, J., dissenting), majority opinion overruled, Galvin v. City of Albuquerque, 87 N.M. 235, 531 P.2d 1208 (1975).
B. Plaintiff’s requested instruction No. 2 should not be considered.
Plaintiff’s requested instruction No. 2 (1) was not one of the claimed acts of negligence which was a proximate cause of the collision as set forth in the court’s instruction No. 1 submitted by plaintiff, and (2) was not a U.J.I. instruction. Only U.J.I. instructions shall be used “unless under the facts or circumstances of the particular case the published Uniform Jury Instruction is erroneous or otherwise improper . . . .” Section 21-1-1(51) (c), N.M.S.A.1953 (Repl.Vol. 4). The trial court can instruct on subject matter not covered by U.J.I., whenever the court determines that the jury should be instructed on that subject. Section 21 — 1—1 (51) (c). The court properly refused the instruction.
Plaintiff’s requested instruction No. 2 should not be considered.
C. Modification of instruction containing “proper lookout” was not erroneous.
Plaintiff properly objected to the modification of its requested instruction by which the trial court deleted the sentence:
“The defendant was not keeping a proper lookout to avoid a collision at the intersection.”
The collision did not occur “at the intersection.” But this phrase does not deny plaintiff’s claim of negligence by way of “proper lookout”.
The majority opinion says: “The trial court correctly refused the plaintiffs’ tendered instruction . . . due to lack of
evidence to support it.” A search of the record does not disclose this fact. It is silent on this matter. The trial court made no such finding.
Authorities cited by the majority opinion are not in point.
The majority opinion does not state that defendant failed to keep a proper lookout as a matter of law. See Martinez v. City of Albuquerque, 84 N.M. 189, 500 P.2d 1312 (Ct.App.1972); May v. Baklini, supra. In my opinion the defendant kept a proper lookout at all times pursuant to U.J.I. 9.3. The trial court did not err in the modification of plaintiff’s requested instruction No. 3.
Furthermore, this matter was not preserved for review for the reasons set forth supra.