(dissenting) :
I dissent.
The respondent, Mrs. Johnson, drove her car into her friend’s driveway and stopped so that the rear of her car had just cleared the sidewalk. The purpose of entering the driveway was to deliver the friend to her own home. After chatting for several minutes in the car with the motor running, the friend got out of the car, and Mrs. Johnson hacked about four feet (defendant says not more than two feet), when she heard a cry. She instantly reversed her direction and drove forward to her original position. She then got out of her car and discovered a two-and-a-half-year-old child, Gregory James Woodhouse, one of the plaintiffs and appellants, lying in the gutter directly behind her automobile. He was bleeding at the ear and had automobile tire marks across his back and also on his chest and stomach, which would indicate that he was run over twice, once as the respondent backed up and again as she went forward.
Gregory sustained a fractured skull and other injuries resulting in permanent disability, the treatment for which to date of trial had cost his father, the other plaintiff and appellant herein, $1,031.37 for hospital services and $1,432.70 for doctor bills, a total of $2,464.07.
Gregory lived next door to the friend’s home but on the other side from the driveway. The defendant was acquainted in the neighborhood and knew that there were a number of small children living in that vicinity. In fact, as she drove into the driveway, there were several children playing nearby, and two small children were seen by the friend on the sidewalk nearby, walking slowly towards the driveway, at the time the defendant pulled into the driveway.
Since Gregory was only two and a half years of age at the time he was injured, no contention is made that he was guilty of any contributory negligence.
At the very time when the defendant backed her car up, there was a two-and-a-half-year-old girl standing about one foot from the side of the rear of her car. The driver saw neither child until after she got out of the car.
The plaintiffs claim negligence in the failure of the defendant to discover the presence of the children before she ran over the infant plaintiff. The jury decided this issue against them, and unless reversible error was committed by the trial court, the verdict should be affirmed.
*217The trial judge properly instructed on negligence but at the instance of the defendant gave the following instruction:
The law recognizes unavoidable accidents. An unavoidable accident is one which occurrs in such a manner that it cannot justly be said to have been proximately caused by negligence as those terms are herein defined. In the event a party is damaged by an unavoidable accident, he has no right to recover, since the law requires that a person be injured by the fault or negligence of another as a prerequisite to any right to recover damages.
The mere fact that an accident happened is not evidence of negligence on anyone’s part.
The plaintiffs claim he erred therein.
A definition of “unavoidable accident” 3s found in 1 C.J.S. Accident at page 442:
In a broad general sense, an “unavoidable accident” has been described as an event from an unknown cause, or an unusual and unexpected event from a known cause; or one which occurs without apparent cause. In a more limited sense, unavoidable accidents has [sic] been defined as such as result from human agency alone, but which are unavoidable under the circumstances.
The instant case does not come within the confines of this definition, since the injury resulted from a known cause, and it is not an unusual or unexpected event. The fact that the defendant did not expect is does not place it in the category of the unusual and unexpected.
Unavoidable accidents, inevitable accidents, and pure accidents are different names for the same idea. See 65 A.L.R.2d 21. The inevitable accident definition is found in 38 Am.Jur., Negligence, § 6. It reads:
* * * Essentially, an accident is a happening to which human fault does not contribute, so far as the cause of the happening may be known. An accident is inevitable if the person by whom it occurs neither has, nor is legally bound to have, sufficient power to avoid it, or prevent its acting so as to injure others. It has been said that “where an event takes place the real cause of which cannot be traced, or is at least not apparent, it ordinarily belongs to that class of occurrences which are designated as purely accidental.” * * *
* * * * * *
The conduct of the defendant is not encompassed by this definition. While we are not concerned with the question here of whether or not the conduct of the defendant measured up to the standard of a reasonably prudent person as to the foresight of injury, it is obvious that the cause of the injury to the boy is known. Human fault did cause the harm, albeit the *218fault may not amount to negligence. Here the defendant had the power to avoid the harm. In failing to use that power, she may or may not have been negligent, hut the accident (if such it be) was not inevitable or unavoidable.
The courts of most states have approved an instruction regarding unavoidable accident, inevitable accident, pure accident, etc., but most have limited the instruction to “a proper case,” and many and varied have been the decisions as to what was a proper case. However, despite the fact that such instructions have in the past been used in the majority of states, it has been a rare occasion when a trial court has been reversed for failing to give such an instruction. See the annotation in 65 A.L.R.2d beginning at page 20. At page 23 it is said:
Since in most jurisdictions there has been so little inclination to regard a refusal of the instruction as reversible error, and the giving of the instruction has so often, and with ample cause, been held reversible error, the better course would appear to be to omit the instruction except in those instances in which quite plainly it is peculiarly appropriate.
In the case of Klesath v. McQueen (Mo.), 312 S.W.2d 122, the giving of an accident instruction was held reversible error, notwithstanding the defense of mechanical failure was well supported by-testimony. The court referred to Missouri cases as running to the effect that a' general accident instruction should not be given when the cause of the casualty is known.
In the case of Wright v. Lincoln City Lines, 163 Neb. 679, 81 N.W.2d 170, it was said, “An 'unavoidable accident’ means when an unexpected catastrophe occurs without any of the parties thereto being to blame for it.” This case quoted the Michigan case of McClarren v. Buck, 343 Mich. 300, 72 N.W.2d 31, as follows: “ ‘Under the facts in this case one or both of the drivers of the colliding cars were guilty of negligence. Under such circumstances it was error to give the quoted instructions (the issue of unavoidable accident) to the jury.’ ” The case further quoted from Hicks v. Brown, a Texas case found at 136 Tex. 399, 151 S.W.2d 790, as follows: “ ‘ * * * if the evidence does not raise the issue that something other than the negligence of one of the parties . caused the injuries, then it does not raise the issue of unavoidable accident.’ ”
The annotation in 65 A.L.R.2d at page 30 states the law of Alabama as follows:
* * * (“the rule is now settled to the effect that because of the tendency to confuse and mislead the better practice is to refuse such charge”); Tyler v. Drennen (1951) 255 Ala. 377, 51 So.2d 516, infra, § 39; King v. Jackson (1956) 264 Ala. 339, 87 So.2d 623, infra, § 30; *219Socier v. Woodard (1956) 264 Ala. 514, 88 So.2d 783 (the “better practice” is to refuse to give such an instruction).
Many states have lately overruled their prior holdings and now refuse to permit the instruction under any circumstances. California was in the vanguard of the states which had a change in viewpoint. In the case of Butigan v. Yellow Cab, 49 Cal. 652, 320 P.2d 500, 65 A.L.R.2d 1, the cab driver intended to make a U turn and gave an arm signal of his intention so to do for a distance of 60 or 70 feet before commencing to make the turn. When he had crossed the center line of the street, his motor stopped, and he was attempting to get his motor started. An oncoming car ran into the cab but the driver of that car claimed he could not see traffic ahead of him until after he had passed through an intersection. He then claimed that he saw a solid line of traffic ahead and a Yellow cab turn suddenly when he was no more than a couple of car lengths ahead of the cab and that no signal of intention to turn was given. He claimed to have applied his brakes but was unable to avoid striking the cab. On the day prior to the collision; the taxi cab had been in the garage because the motor had stalled, probably because the carburetor had been adjusted too lean in order to save gasoline. The passenger in the cab sued the taxicab driver, the taxicab company, and the driver of the other vehicle. The trial court gave the instruction on unavoidable accident or inevitable accident. In reversing the trial court and overruling prior California cases, the court said at page 505 of the Pacific Reporter:
The instruction is not only unnecessary, but it is also confusing. When the jurors are told that “in law we recognize what is termed an unavoidable or inevitable accident” they may get the impression that unavoidability is an issue to be decided and that, if proved, it constitutes a separate ground of nonliability of the defendant. Thus they may be misled as to the proper manner of determining liability, that is, solely on the basis of negligence and proximate causation. The rules concerning negligence and proximate causation which must be explained to the jury are in themselves complicated and difficult to understand. The further complication resulting from the unnecessary concept of unavoidability or inevitability and its problematic relation to negligence and proximate cause can lead only to misunderstanding.
The California court further said that whether the error in giving such an instruction was reversible would 'depend on the circumstances of each case.
The editor of the annotation in 65 A.L.R. 2d at page 28 has the following comment:
* * * One may say that, in addition to the objectionable qualities stressed by. the California court, the instruction quite *220obviously savors of abstraction and, instead of encouraging the jury to give strict attention to the matters of specific fact in issue, invites a turning away from them and a taking of refuge in generalities.
In addition to California’s holding in the Butigan case, the following cases from other jurisdictions are to be noted:
Lewis v. Buckskin Joe’s, Inc., 156 Colo. 46, 396 P.2d 933, was a case where the jury returned a verdict for the defendant after being instructed on unavoidable accident. The Supreme Court of Colorado reversed and in speaking of the instruction said at page 941 of the Pacific Reporter:
This instruction should not have been given. Instructions on negligence and contributory negligence are sufficient and inclusive of so-called unavoidable accidents. To further instruct on unavoidable accident serves only to twice tell the jury that the plaintiff cannot recover unless he proves negligence.
Though this court has sanctioned the giving of instructions on unavoidable accident and, on occasion, held it to be reversible error to refuse to so instruct, we now determine that to give such instruction or to recognize unavoidable accident in an action based on negligence, as an independent element, separate and apart from negligence and contributory negligence, is improper.
The Oregon case of Fenton v. Aleshire, 238 Or. 24, 393 P.2d 217, was one in which the trial judge gave the usual instruction on unavoidable accident. The verdict was-for the defendant, and the court gave a new trial. The Supreme Court affirmed and at page 222 of the Pacific Reporter said:
In the modern law of negligence the doctrine of “unavoidable accident,” or,, as it is sometimes called, “inevitable” or “pure” accident, is an anomaly. By definition — at least by the definition adopted by this court — it has no place as a separate and independent element in an action based on negligence. * * *
The decision quotes with approval the Butigan case and then says at page 223 of the Pacific Reporter:
This reasoning is in full accord with what this court has said in numerous decisions, and makes unavoidable the conclusion that instructions on unavoidable-accidents in negligence cases are without value and may be prejudicial.
The case of Vespe v. DiMarco, 43 N.J. 430, 204 A.2d 874, approved both the Buti-gan case of California and the Oregon case-of Fenton v. Aleshire, supra. At page 881, of the Atlantic Reporter the Supreme Court paid its final respects to the unavoidable accident instruction in the following language :
In our view, Butigan v. Yellow Cab Co. represents a sound solution of the-*221problem. Accordingly, we bold that in the future a specific charge on unavoidable accident should not be given to the jury. In that way misunderstanding germinated by the notion that absence of negligence and unavoidable accident are different concepts and issues will be avoided.
The Indiana Supreme Court had before it the question of the propriety of giving an instruction on “pure accident” in the case of Miller v. Alvey, 207 N.E.2d 633. In reversing the trial court it was said at page 636 of the North Eastern Reporter:
* * * It is thus readily apparent that the word “accident” does not necessarily preclude fault or negligence. The term is susceptible of different meanings and constructions and to tell a jury there is no liability in case of “unavoidable accident” or “pure accident” i. e., an unintentional, careless, or unknown occurrence, is misleading and confusing to say the least, and is not compatible with the principles of tort law imposing liability on persons who fail to exercise ordinary or reasonable care.
* * * * * *
In a present day action based upon negligence the plaintiff must show his injury was proximately caused by the defendant’s negligence, and the defendant under a pleading equivalent to a general denial may show any circumstance which rebuts the allegations of negligence directed to him or which concerns their causal effect. The expression “unavoidable accident” or “pure accident” is not an affirmative defense and has no particular connotation in modern pleading of negligence cases. Such terminology adds nothing to the issues properly before the court or jury and as the expressions are ambiguous and particularly confusing to lay jurors, their use in instructions is undesirable and unwise, and any statements in prior decisions of this state construed as authorizing instructions on “pure accident” or “unavoidable accident” are hereby disapproved.
The Arizona case of City of Phoenix v. Camfield, 97 Ariz. 316, 400 P.2d 115, involved a case where the plaintiff was at home in bed when a police car, in pursuit of another automobile, crossed over a dip and went out of control and crashed into the plaintiff’s bedroom. The trial court refused to give an instruction on unavoidable accident, and the City appealed from a verdict for the plaintiff. At pages 120 and 121 of the Pacific Reporter the court used the following language:
* * * In cases in which we have held it not to be reversible error to give an instruction on unavoidable accident, the rationale has been that the evidence showed the accident happened without negligence. [Citation omitted.] The modern trend seems to be away from the giving *222of such an instruction. If the jury is properly instructed on the necessity of negligence on the part of the defendant and the request that this negligence he the proximate cause of the injury that is sufficient. The defense of unavoidable accident is actually a defense of non negligence and an instruction on unavoidable accident is, in fact, confusing. It improperly implies that “unavoidable accident” is a separate and distinct defense from “non negligence.”
* * * * * *
Article 6, sec. 27 of the Arizona Constitution, A.R.S. provides:
“ * * * No cause shall be reversed for technical error * * * when upon the whole case it shall appear that substantial justice has been done.”
* * * In view of this constitutional article we hold that while it is always error to give an instruction on avoidable accident, a plaintiff must show prejudice in the giving of such an instruction. But we also hold that it can never be error to refuse to give the instruction on “unavoidable accident” and that the instruction should not be given in the ordinary case, * * *
The Arkansas case of Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872, discussed the Butigan case and at page 875 said:
We are of the opinion that in a typical negligence case the position taken by the California court is right. In such a case the plea of unavoidable accident is in fact nothing more than an assertion that the defendant was not guilty of actionable negligence. That defense should be submitted to the jury in terms of negligence and proximate causation. For the court to submit also an issue of unavoidable accident is, as the Butigan opinion pointed out, to suggest that unavoidability is a separate defense, requiring separate consideration by the jury.
Our Utah court in the case of Porter v. Price, 11 Utah 2d 80, 355 P.2d 66, in disagreeing with the Butigan case, took some small comfort in quoting that part of the decision relating to the question of whether the error would be prejudicial. The Utah court did not expressly disapprove the trial court’s giving of an instruction on unavoidable accident. It stated that the instruction was not prejudicial to the plaintiffs in view of the fact that the court had given Instruction Nos. 9 and 10.
The defendant in the Porter case was suddenly seized with a severe insulin reaction,. which caused him to lose control of his automobile and to crash into a parked car.
Instructions 9 and 10 are set out below:
Instruction No. 9:
A driver of an automobile who is stricken by paralysis, seized by a fit or otherwise rendered unconscious and who still continues to drive while unconscious *223and causes damages or injury to another cannot be held responsible therefor unless he was reasonably aware that he was about to lose consciousness to the extent that a person of ordinary prudence would not attempt to continue driving.
Instruction No. 10;
' You are instructed that fainting or loss of consciousness while driving is a complete defense to an action based on negligence if such loss of consciousness was not foreseeable. If you find that defendant Hyrum Price was suffering from an unforeseen insulin reaction, resulting in a fainting spell or loss of consciousness at the time of this accident, then you must return a verdict in favor of the defendant and against the plaintiffs.
On the other hand, if the insulin shock that defendant suffered was foreseeable and he could have done something about it, and thereby avoided the accident, then and in that event he would be charged with negligence proximately causing the accident.
This court went on to say at page 84 of the Utah Reports, at page 68 of 355 P.2d:
* * * It is true that in most cases the usual instructions on negligence and proximate cause make it sufficiently clear that the plaintiff must sustain his burden of proof on these issues in order to recover, and that in such instances an instruction on unavoidable accidents serves no useful purpose.
This court apparently seemed to feel that no useful purpose could be served by the giving of an instruction on unavoidable accident, and in the Porter case thought that if error was committed, it was harmless by reason of the full instructions given on the other matters. In fact, it would appear that under the evidence of that case, the court could have directed the verdict in favor of the defendant.
While this court has approved an instruction on unavoidable accident, it apparently has never felt any great need for giving the instruction. In Wellman v. Noble, 12 Utah 2d 350, 366 P.2d 701, it said:
This court has held that in cases where the facts warrant doing so, it is not error to give an instruction on unavoidable accidents. However, actually such an instruction in most cases is superfluous in view of the other instructions which are given covering the basic issues in accident cases and serves no useful purpose except to add to the length of the instructions and to that extent detract from their effectiveness. We know of no case where this court has ever held the failure to give an instruction on unavoidable accident to be prejudicial error. * * * (Emphasis added.)
The giving of the instruction on unavoidable accident in the instant case seems par*224ticularly improper in view of the fact that the question of negligence here was one that should be determined in view of all the surrounding circumstances in this case. The backing of a car across the sidewalk, when it is known or should be known that children are in the vicinity, is a maneuver that requires a degree of vigilance commensurate with the hazard involved. As was said in the case of Wood v. Balzano, 137 Me. 87, 15 A.2d 188, at 189:
Common experience has demonstrated that in backing a closed car the driver is greatly restricted, if not entirely prevented from seeing objects below the rear window and in close proximity to the car. Under such circumstances great vigilance is required to comply with the rule of reasonable care.
In the Vermont case of Crossman v. Perkins, 101 Vt. 94, 141 A. 594, 596, it was held that where a motor truck was backing out of a driveway into the street, “He had no right to assume that the road was clear, but was bound to be vigilant, watchful and to have anticipated and expected the presence of others.”
With such vigilance required on the part of the defendant, I believe that to inject the idea of unavoidable accident into the deliberations of the jury was reversible error.
Defense counsel always refers to an injury as an “accident.” If he can persuade the judge to lend his influence to the proposition that the unfortunate event might have been unavoidable accident, he should be credited with a master stroke towards brain washing the jury. Such an instruction gives the defense counsel two arrows for his bow. He can discuss the evidence on all phases of the case regarding lack of neglignce on the part of the defendant, and then he can draw another arrow from his legal quiver and begin to talk about unavoidable accidents as if that were something apart from negligence. The jurors are apt to believe the judge when he tells them that all instructions are of equal importance, and they must of necessity wonder why the judge gave the instruction on unavoidable accident if it meant exactly what he had told them about negligence and the lack thereof. It compels the plaintiff to assume the double burden of convincing the jury, first, that the defendant was negligent and, second, that there was no unavoidable accident. If the plaintiff succeeds in establishing negligence on the part of the defendant which proximately caused the injury, that should be the end of the discussion so far as liability is concerned. Any further discussion of unavoidable accident could only lead to confusion and result in prejudice.
If the jury finds no negligence on the part of the defendant, then there is no need for the instruction in the first place.
The instruction on unavoidable accident had its genesis in common-law days when damages could be recovered in an action of trespass, and strict liability was imposed *225•upon the defendant unless he proved the injury was caused by an “inevitable or unavoidable accident.” Such an accident was then an affirmative defense, which had to be pleaded and proved by the defendant. See 2 Harper and James, The Law of Torts, 1956, § 12.2, page 747, et seq.
Since the Massachusetts case of Brown v. Kendall, 60 Mass. 292, 6 Cush. 292 (1850), the pendulum has swung away from inevitable accident or unavoidable accident and fixes liability upon blameworthy conduct. Originally it did not matter whether the defendant was negligent or not. He was liable unless he could show inevitable or unavoidable accident. Those courts which still give lip service to an instruction on unavoidable or inevitable accident are but clinging to a useless, obsolete relic of a bygone age.
Plaintiffs claim further error in that the court failed to give their requested instructions to the effect that even though the jury find the defendant not negligent in backing her car, nevertheless when she heard the cry of the child, the jury should consider whether her driving forward thereafter was negligence. There was a further request that if the jury found negligence only in driving forward and that such negligence was a proximate cause of injury to the child, defendant would be liable only for the harm done in going forward unless the damage could not be allocated between the non-negligent backing and the negligent driving forward, in which case defendant would be liable for all of the harm done. I think that an instruction to this effect should have been given.
I believe that the giving of the instruction on unavoidable accident in this case under the facts disclosed by the evidence was reversible error and am of the opinion that hereafter our trial courts would be well advised if they did not give such an instruction under any set of circumstances. I further believe that it was error not to give the requested instruction regarding negligence in connection with driving the car forward after defendant heard the crying of the child, as this would seem to be a jury question.
For the above reasons I think the judgment should be reversed and the case remanded for a new trial, with costs to the plaintiffs.