(concurring in part, dissenting in part.).
I concur in all parts of the majority opinion except the last paragraph of Section VI and the reversal of the Hodges verdict against Dils.
The majority assumes in the paragraph which I object to that the jury found Dils contributorily negligent under incomplete instructions. I do not believe a reviewing court should make assumptions about a jury’s findings, especially when there are several acts of negligence alleged and toward which evidence has been presented. Even if the majority is correct in its evaluation of the jury’s verdicts, the logical extension of that assumption is that Lewis was negligent; Dils was contributorily negligent; Hodges was not contributorily negligent, and, therefore, Hodges (the Dils passenger) should have recovered against both negligent defendants.
Secondly, an assumption of an erroneous finding of Dils’s contributory negligence bears only on Dils’s (Bloom’s) and Hodges’s claims against Lewis, and should have no effect whatever upon the claims of negligence made by Hodges against Dils. That verdict in favor of Hodges must be viewed in the light most favorable to the prevailing party. Romero v. Melbourne, 90 N.M. 169, 561 P.2d 31 (Ct.App.1977). In so viewing that verdict, it is necessary to bear in mind that Hodges claimed several acts of negligence against both Lewis and Dils, which included:
1. That the Defendants failed to exercise the duty of every operator of a vehicle using the public highways to exercise ordinary care at all times to avoid an accident.
2. The Defendants failed to keep the proper lookout.
3. The Defendants failed to maintain proper control of their vehicles.
4. That the Defendants failed to operate their vehicles upon the right half of the roadway and entirely to the right of the center thereof.
5. That the Defendants, while driving their vehicles, proceeded in opposite directions and attempted to pass each other to the left or upon the wrong side of the roadway.
6. That the Defendants drove their vehicles to the left side of the roadway when approaching the crest of a grade where the driver’s view is obstructed.
7. That the Defendants operated their vehicles carelessly and heedlessly in willful, wanton disregard of the rights of others and without due caution and circumspection.
Against these claims, the Dils defendants asserted Hodges’s contributory negligence and the jury was instructed that if the Dilses proved their affirmative defense, Hodges could not recover. Despite this instruction allowing an erroneous defense to Dils and against Hodges (see Paragraph VII, supra), a verdict was returned for Hodges and against Dils. Stated another way, Dils lost the verdict to Hodges under a lighter burden on Dils than will be imposed on Dils if the Hodges-Dils case is retried, because Dils will not be able to assert Hodges’s contributory negligence, and Dils, too, will have the burden of explaining her presence on the wrong side of the road if the jury finds that was her position shortly before the crash.
Insofar as the Hodges-Dils suit is concerned, and under the instructions given to the jury, the jury could have found that one or more of the negligent acts pleaded against Dils caused injury to Hodges, and that Hodges’s conduct had not contributed to that injury; or that Dils was wilfully and wantonly negligent and Hodges’s recovery was not barred by contributory negligence.
Finally, on appeal Dils objected to the Hodges verdict only on the grounds that (1) the trial was tainted because of the destroyed tape recording of Bordelon’s statement, (2) negligence of Lewis was evident from the physical fact that Lewis was on the wrong side of the road at the moment of impact, and (3) Dils was denied the presumption of a decedent’s due care. Items (1) and (3) are answered in the majority opinion (with which I concur) adversely to Dils. Item (2) is covered by Paragraph VI, supra, and under the evidence of this case, applies to both the Dils and Lewis drivers. It has no application whatever to the other acts of Dils’s negligence alleged by Hodges. The jury was aware that Hodges’s driver, Dils, was on her own side of the road when the accident occurred; nevertheless, it held Dils liable in negligence to her passenger. This clearly indicates to me that whether either driver could or will satisfactorily explain away evidence of being on the wrong side of the road immediately before and at the time of the accident, it was not wrong-side-of-the-road negligence that resulted in Hodges’s verdict against Dils.
Dils requested and obtained an instruction on contributory negligence and the negligence of a passenger, which were objected to by Hodges. Dils also failed to request a proper instruction on the issue discussed in Paragraph VI, supra. She cannot now complain of the effect of improper or incomplete instructions when she contributed to the errors. See Platero v. Jones, 83 N.M. 261, 490 P.2d 1234 (Ct.App.1971).
This court should hold that, having lost a verdict under more favorable instructions than will govern the retrial of the Hodges-Lewis and Dils-Lewis retrials, Dils (Bloom) should not be permitted to chance that somehow a second jury will reach a different decision on her liability to Hodges. One jury has already decided Hodges’s entitlement to recovery against Dils under instructions most prejudicial to Hodges. Hodges should not be deprived of that verdict.
Upon retrial, this is a case that begs for special interrogatories to be submitted to the jury.