(concurring in the result).
I concur in the result but dissent from that portion of the main opinion that 1) concludes that failure to give an instruction on “unavoidable accident” was not prejudicial.
The very facts related in the main opinion prove the significance of an instruction on “unavoidable accident.” It is difficult to understand how the main opinion concedes that “technical expert opinion justifies such conclusion, assuming such circumstances” and then says “other evidence indicates that Adams should have seen the stopped vehicle when he was much farther away,” without conceding that there was a jury question as to both theories, albeit the opinion states there was no justification for an instruction on each. If there were facts from which reasonable persons could have concluded there had been an unavoidable accident (as the main opinion concedes there were), such a theory is as important as that bottomed on negligence. It deserves a qualitative and quantitative quid pro quo in the way of instructions.
The main opinion finds itself impaled on the horns of a dilemma, one of which seems to have penetrated deeper than the other. If there were evidence jusifying a finding of unavoidable accident, this court seems to indulge in emphasizing an unwarranted dignity to the sometimes worn-out cliche that “failure to give such an instruction was not prejudicial error.” I deem that it was prejudicial in this case, and the defendant, who lost, thinks it much more than I do. If the refusal to give the instruction was not prejudicial, it would seem that it would be as facile to say that failure to give the other would not have been prejudicial, on the assumption that juries, in their infinite wisdom, know all about what instructions as to one theory are included in other instructions as to another theory.
It seems to ensue from the conclusion of the majority, that in this forum it is now established that following an instruction on *356the burden of proving negligence, the one on unavoidable accident has become engulfed therein, — no longer is necessary. If this be so, our jurisdiction must tear from all the works on instructions, all reference to one on unavoidable accident. So far as I have ever known, an instruction on the quantum of evidence and the burden of proving it to establish negligence has been given in every single case involving the subject of negligence. This court has bid a cool mal voyage to any instruction on unavoidable accident in which I think is involved in every case where it may raise its ugly head.
One’s imagination need not extend very far to visualize a case where the facts lend substantial doubt as to defendant’s negligence, but little as to the unavoidability of an accident. The main opinion poises the defendant on an instruction precipice with two ropes, one of which he cannot use. Could he emphasize to the jury the strength of one as well as the other, in plain, understandable laymen parlance, he might survive the fall. If I had been on the jury in the light of the facts adduced, I am constrained to conclude that a proper instruction on unavoidable accident would have led me to a conclusion other than that reached, — or slowed me down with a greater hesitation as to which of the two theories more convincingly was borne out by the evidence.
The main opinion suggests that it knows of no case in which we have decided that “failure to give an instruction on unavoidable accident” was held to be “prejudicial error.” This could imply only that there cannot be a first time. It is no precedent for the opposite conclusion when that first time comes along. Courts too frequently assume that 1) in every personal injury case one of the litigants was or must have been negligent; or that 2) there is no such thing as an unavoidable accident. I consider such assumptions to have been employed all too frequently. To their dignity we pay tribute by flouting bothersome points on appeal with the convenient method of generalizing nonprejudice. Everything neglected in giving admittedly proper instructions is prejudicial to the loser, and it is no answer to suggest, as does the main opinion, that a failure to give one instruction helps cut down the number of instructions, and that, somehow this is good, even if substantial rights may be affected by the cutting-down process.
To say that one proper instruction is swallowed by another where two distinct theories emerge in a case, lends magnitude to an assumed omniscience of laymen in knowing which technical fish shall be swallowed by the other. There were two distinct theories here, having equal dignity in the courtroom, either of which the jury *357could have espoused. Both should have been put to the veniremen. This writer would, make book on the outcome of this case had the unavoidable accident instruction been given, and my odds would have favored a different verdict.