(specially concurring).
I concur in the result.
Judge Lopez’ opinion holds that the refusal of plaintiff’s requested instructions on “assumption” is reversible error. I disagree. The opinion holds that the trial court’s instructions on the affirmative defense of contributory negligence, sudden emergency and independent intervening cause are reversible error. I agree.
The opinion also contains statements, citation of authorities and discussions with which I disagree. But to specify each disagreement would add fuel to the fire.
To me, it is a sad day in the field of negligence law to note that attorneys submit non-U.J.I. instructions to bolster a claim for relief or an affirmative defense, submit U.J.I. instructions that are clearly inapplicable, and weave theories of law that lead juries astray. To invite reversible error is foolish and puerile. To plead for “harmless error” is a plea to sustain a verdict of the jury without the unknowable fact of its impact on the jury. The use of the doctrine of “harmless error” in the submission of erroneous instructions to the jury means that the appellate judges are returning their own verdict, preceded by, but independent of, the jury’s verdict. This appellate verdict is founded upon a knowledge of the learning of jurors and their discussion of the erroneous instructions given. Appellate judges are able to and do disregard improper matters, but it is*impossible to know that the jury did.
Experience has taught me that jurors are a cross section of people in the community with average intelligence, sincere in their devotion to this service. Instructions are read and analyzed, discussed and debated. Each instruction given does bear upon the verdict of the jury. For these reasons, we have adopted U.J.I. to try and avoid reversible error. Jurors heed the legal instructions given by a judge, the expert, and accord to him appropriate respect for his superior legal wisdom.
Attorneys who participate in negligence trials should read, study and know the impact of non-U.J.I. instructions and improper U.J.I. instructions submitted to a jury. To win the battle on instructions and lose the war does not comport with a fair trial.
This appeal is based on error in the court giving three instructions, and its failure to give two of plaintiff’s requested instructions.
A. Instruction on defendant’s affirmative defenses was erroneous.
The court instructed the jury that:
1. The plaintiff was contributorily negligent and cannot recover in that:
* * * * * *
d. In the exercise of reasonable care and caution plaintiff should have observed that the stop sign was so situated as to be ineffective to the defendant as a motorist and, therefore, not have relied on a right of way.
In effect, it told the jury that plaintiff should not rely on the right-of-way if she should have seen that the stop sign was ineffective to the defendant. Defendant does not explain by what process of mental reasoning plaintiff could know what effect a stop sign turned edgewise can have on defendant driving into the intersection at 25 miles per hour. The jury could well have believed that plaintiff, in the exercise of reasonable care, had a duty at some time prior to the collision, to slow down or stop and observe the stop sign turned edgewise on andntersecting street, to see what effect the stop sign turned edgewise would have on a motorist driving into the intersection, and perhaps yield the right-of-way. This would require plaintiff to drive down defendant’s street to make the determination of cause and effect.
We are not aware of any rule of the road that requires a driver on an arterial highway to examine stop signs on an intersecting street to see if they are properly in place or position and what effect the stop sign will have on a motorist driving into the arterial highway from an intersecting street. If the defendant had any complaint to make, he should have pointed his finger at the City, not the plaintiff.
A right-of-way is not exclusive. Plaintiff had a duty to exercise reasonable care to avoid a collision when she became aware of the fact that defendant would not yield the right-of-way. Langenegger v. McNally, 50 N.M. 96, 171 P.2d 316 (1946). This burden was placed on plaintiff in the above instruction. Instruction 1(a), (b) and (c) required plaintiff to keep a proper lookout, control her car and control speed. Defendant could ask for no more.
Furthermore, U.J.I. 3.1 contains a note: Here set forth in simple form such affirmative defenses which are supported by the evidence such as
The plaintiff was contributorily negligent in that:
(1) The defendant was entitled to the right of way, which plaintiff failed to yield to him.
(2) The plaintiff was not keeping a proper lookout to avoid a collision.
Instruction 1(d) was not supported by any evidence.
U.J.I. 3.1, Directions On Use says:
This is the most important single instruction in the lawsuit, and court and counsel should give particular attention to it.
When court and counsel flagrantly abuse this cautionary directive, they must begin the trial all over again. Being clear, manifest and palpable error on one of the crucial issues in the case, it is prejudicial error.
B. U.J.I. 3.1 on plaintiff’s burden of proof is confusing.
Plaintiff objected to a portion of U.J.I. 3.1 because it was misleading and it led the jury to believe plaintiff had a duty to prove all acts of negligence of the defendant instead of one act of negligence.
U.J.I. 3.1 reads, and the jury instructed, that:
The plaintiff has the burden of proving that [she] sustained damage and that one or more of the claimed acts of negligence was the proximate cause thereof.
******
If you find that the plaintiff has proved those claims required of [her] . then your verdict should be for the plaintiff.
If on the other hand, you find that any one of the claims required to be proved by plaintiff has not been proved . then your verdict should be for the defendant. [Emphasis added.]
Plaintiff made only one claim for relief based on several acts or claims of negligence. The jury instructions were sent to the jury room. They are usually read and analyzed. The average mind of a juror could conclude that the plaintiff must prove “those claimed acts of negligence required of her,” and if she does not prove “any one of the claims” she cannot recover. For example, the word “cloud” means a dark spot on the forehead of a horse between the eyes. To a jury it can mean a host of definitions. There is a difference between a “claim” and a “claim for relief”. To avoid confusion, the concluding portion of U.J.I. 3.1 should read:
If you find that the plaintiff has proved “the claim(s) for relief” required of her . . then your verdict should be for the plaintiff.
If on the other hand, you find that plaintiff’s “claim(s) for relief” . has not been proved . . . then your verdict should be for the defendant. [Emphasis added.]
This suggestion also applies to affirmative defenses.
If the jury believed that plaintiff had to prove all of the alleged acts of negligence of the defendant set forth in the instruction, it could have affected the verdict.
C. The sudden emergency instruction was erroneous.
In the instant case, the facts show that defendant did not have a choice between two courses of action to take to avoid the collision. “The sudden emergency doctrine applies to the choice an actor makes after he is confronted with sudden peril through no fault of his own.” Martinez v. Schmick, (Ct.App.) 90 N.M. 529, 565 P.2d 1046, decided May 10, 1977 (Sutin, J., dissenting). Under the facts of this case, giving U.J.I. 13.14, Sudden Emergency, was reversible error.
D. Plaintiff’s requested instruction on contributory negligence and “assumption” were properly refused.
Plaintiff’s requested instructions on “assumption” are set forth in Judge Lopez’ opinion. The first one says: “[Y]ou must find that Dorothy Williams was not contributorily negligent.” The error of this instruction needs no comment. The second one provides that plaintiff had a right to rely “upon the assumption” that defendant would see the stop sign and not undertake to cross the intersection, and need not anticipate that a driver will enter the intersection in violation of a stop sign.
These are not U.J.I. instructions and they were properly refused. Uniform jury instructions have been in existence for over eleven years. Yet, trial attorneys and district judges fail to read Rule 51(c) and (e) [§ 21-l-l(51)(c), (e), N.M.S.A.1953 (Repl. Vol. 4)]. Rule 51(c) says: “. . . [T]he U.J.I. instruction shall be used unless under the facts or circumstances of the particular case the published Uniform Jury Instruction is erroneous or otherwise improper, and the trial court so finds and states of record its reasons.” The trial attorney and the district court should know that non-U. J.I. instructions are a nuisance; that the submission of them to the jury can be reversible error.
Rule 51(e) allows attorneys to request non-U.J.I. instructions on a subject like products liability where no applicable instruction on the subject is available. See, U.J.I. 16.5. Instructions on products liability have been drafted by the Supreme Court Committee and will soon be made effective.
We recognize that a driver on a through highway has the right to assume that a driver on the intersecting stop road would obey the law by coming to a full stop before entering the highway. Bunton v. Hull, 51 N.M. 5, 177 P.2d 168 (1947). But the right to instruct upon this “assumption” is foreclosed until the Supreme Court adopts an instruction on this theory. “Assumption” is a matter of argument, in this case, to avoid contributory negligence.
E. The “intervening cause” instruction was erroneous.
The “intervening cause” instruction appears in Judge Lopez’ opinion. To request and submit this instruction under the facts of this case is nonsense. To argue that a stop sign, turned edgewise, is an independent, intervening cause of an intersection collision is twiddle-twaddle. It does not require the citation of authority.
HERNANDEZ, Judge(specially concurring).
I concur in the result. I disagree with Judge Lopez on his point one, “Assumption Permitted to a Motorist on a Through Street.” The cases on this point in other jurisdictions are generally in accord with Ory v. Travelers Insurance Co., supra. I do not agree with Judge Lopez’ analysis that Schmit v. Jansen, 247 Wis. 648, 20 N.W.2d 542, 162 A.L.R. 925 (1945) is an exception to the rule of Ory, supra. Schmit shares with Ory the view that a motorist on a through street has the right to rely on the assumption that traffic on a cross street will stop before entering an intersection with a through street, and that the assumption holds even when a stop sign on the cross street is missing or displaced. Schmit simply found that there was an unavoidable accident because, under the facts of the case, the motorist on the through street had the preferential right-of-way, while the motorist on the cross street had the general right-of-way because the other driver was approaching from her left. Although I agree with Judge Lopez about the rules of right-of-way and their application in this case, I cannot agree that it was error for the trial court to refuse the first of the tendered instructions on the subject, because the instruction does not state the law correctly. The last sentence quoted from Ory by Judge Lopez sums up what is missing from the tendered instruction:
“But the right to rely on the assumption may be lost where the driver on the arterial road is not himself exercising due care while approaching or crossing the intersection, and motorist [sic] upon arterial highways will be held liable, of course, for collisions resulting from their failure to exercise due care toward traffic on the intersecting road.” [Ory v. Travelers Insurance Co., supra.]
Neither of the tendered instructions gives an adequate indication that plaintiff was still subject to the duty of ordinary care despite her right to rely on having the right-of-way, so that if she saw or should have seen defendant’s car approaching, she had a duty to try to avoid the collision. The second sentence of the first instruction makes a stab at this, but the error has already been committed in the first sentence, which directs a verdict for plaintiff if she did not see defendant, without regard to whether she should have seen him. It is not error for the trial court to refuse an instruction which is incomplete, erroneous or repetitious. LaBarge v. Stewart, 84 N.M. 222, 501 P.2d 666 (Ct.App.1972); cert. denied, 84 N.M. 219, 501 P.2d 663 (1972); Goodman v. Venable, 82 N.M. 450, 483 P.2d 505 (Ct.App.1971).
Point two, “Plaintiff’s Contributory Negligence.” Part Id of this instruction is so clearly lacking support in the evidence that comment is unnecessary. The other portion of the instruction to which plaintiff objects is as follows: Plaintiff rightly contends that this instruction is misleading, since it might easily be understood to mean that plaintiff must prove all of the five claimed acts of negligence set forth in Instruction No. 1, while in fact plaintiff need only prove one of them. Rule 51(c) (N.M.R.Civ.P. 51(c), § 21-l-l(51)(c), N.M.S.A.1953 ((Repl. Vol. 4, 1970)) provides that “the U.J.I. instruction shall be used unless under the facts or circumstances of the particular case the published Uniform Jury Instruction is erroneous or otherwise improper . . . The purpose of instructing the jury is to make the issues that it is to determine plain and clear. Embrey v. Galentin, 76 N.M. 719, 418 P.2d 62 (1966). Changing the phrase “any one of the claims” to “any claim” would make Instruction No. 2 less likely to mislead the jury.
“If, on the other hand, you find that any one of the claims required to be proved by the plaintiff has not been proved or that any one of the defendant’s affirmative defenses have been proved, then your verdict should be for the defendant.” [N.M.U.J.I. Civ. 3.1]
Point three, “Sudden Emergency.” What Judge Lopez intends to hold on this point is not clear. He says, “. there was evidence the emergency was caused by the defendant’s negligence; therefore, he cannot take advantage of a sudden emergency instruction.” This court has held twice in recent months that the existence of a jury question with regard to whether the party offering the sudden emergency instruction contributed by his own negligence to creating the emergency is not a bar to giving the sudden emergency instruction where there is evidence to support it. Martinez v. Schmick, 90 N.M. 529, 565 P.2d 1046 (Ct.App.1977); Barvier v. Jennings, 90 N.M. 83, 559 P.2d 1210 (Ct.App.1976). Only if the court can rule as a matter of law that there was prior negligence which contributed to creating the emergency can the sudden emergency instruction be refused. It is not clear whether Judge Lopez intends to hold as a matter of law that defendant in the instant case was guilty of prior negligence. I believe this was a proper question for the jury and the emergency instruction should have been given. Defendant’s testimony indicates that he had two possible courses of action in the emergency, to slam on his brakes or to try to go around plaintiff’s car.
Point four, “Independent Intervening Cause.” I concur with Judge Lopez on this, although I question the implication in his opinion that defendant ran a stop sign, since there was no visible sign for him to run.