(concurring in part and dissenting in part).
We are involved with a simple highway truck accident that occurred in Taos County, New Mexico, on January 18, 1973, caused by a snowdrift on the highway. However, there was a complaint with three plaintiffs and a counterclaim with two defendants in which opposing parties sought property damage and personal injuries.
Before and during trial, opposing attorneys assaulted and battered each other for days with furious arguments, accusations, differences of opinion, the use and nonuse of witnesses, the lack of time granted defendants to present their case, and many similar oral tongue fights. The attorneys fought with their gloves off, with no holds barred and without any courtesies of debate. No punches were pulled. An old saw found' in many languages says: “He that fights for his life and runs away may live to fight another day.”
In the trial of a lawsuit, where neither party runs away, both parties may live to fight another day.
Many fouls were committed in this fight.
When instructions are submitted to the jury, it is a simple task for the trial court to submit U.J.I. instructions pertinent to the facts presented. Before submitting the instructions, the court is made aware of errors by objections made. It should know that attorneys often overstep their bounds in the submission of requested instructions, and then use them as a sledgehammer in the fight. Time, patience and study are essential ingredients for the determination of proper instructions. When requested instructions are refused, reasons for refusing instructions should be stated in the record. Hurrying or rushing into submission of the instructions to the jury as a time sequence for the conclusion of the trial can lead to reversible error. This means the loss of a year or more in time, a loss of expenses and attorney fees paid, and often a loss of a witness or two.
Let us take a look at the confusion in this case. It illustrates the importance of giving instructions which are simple in language, clear to the average mind, and free from any appearance of doubt in their meaning. Instructions are taken to the jury room. Jurors today read the instructions carefully because they are bound by them. When they do not understand the language or are perplexed by the various instructions given, confusion arises. When this occurs, we must reverse.
The foreman of the jury, during deliberations, submitted three memoranda to the court, questions to be answered:
(1) “Do the last two paragraphs of instruction 17 apply to instructions 18 and 19[?]
ANSWER: “No.
“Under instruction 11, if a person has done all that requires of him, can he still be guilty of violating a statute[?]
ANSWER: “Yes.
(2) “Referring to Instruction #11, if guilty of violation of either Inst. #17, 18 or 19 (“Statutes”) can he be found not guilty of negligence under #11[?]
ANSWER: “The determination of negligence is the duty of the jury.
(3)“Instruction No. 11 allows “His duty is to exercise only the care that a reasonably prudent person would exercise in the same situation. “Instruction No. 17 appears to allow such leeway with its quoted statute. “Instructions No. 18 & 19 point out no such leeway in regards to their quoted statutes & could be interpreted that by definition the person is negligent if the vehicle is on the wrong side of the center of the road. “Is there any conflict between instruction No. 11 & instructions 18 & 19?
i.e. in 11 ‘. . . he has done all that the law requires of him’
ANSWER: “You are to consider the instructions as a whole.”
In addition to this confusion, the court gave instruction No. 15, requested by plaintiff Whitfield. It was not an U.J.I. instruction. It reads:
If you find from the evidence presented in this case that the Navajo Freight Lines, Inc. tractor-trailer was on the wrong side of the road at the instant of the collision, and if you find that Navajo Freight Lines, Inc. and Robert White cannot excuse or justify their presence on the wrong side of the road, then you are instructed that said conduct constitutes negligence on the part of Defendants Navajo Freight Lines, Inc. and Robert White. [Emphasis added.]
This instruction added fuel to the fire.
Plaintiffs did win the verdict of the jury, but the plaintiffs created confusion con.founded. It ended in a 10-2 verdict of the jury for the plaintiffs. This is not the way to win a fight.
Defendants’ requested instruction, refused by the court, reads:
There was in force at the time of the accident in question a certain federal regulation which provided that:
“Extreme caution in the operation of a motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust or smoke adversely affect visibility or traction. Speed shall be reduced when such conditions exist.”
If you find from the evidence that the Plaintiff conducted himself in violation of this federal regulation you are instructed that such conduct constituted negligence as a matter of law, unless you further find that such violation was excusable or justifiable.
To legally justify or excuse a violation the violator must sustain the burden of showing that he did that which might reasonably be expected of a person of ordinary prudence acting under similar circumstances who desired to comply with the law.
This instruction related to a federal regulation governing interstate carriers. 49 C.F.R. § 397.2.
Whitfield was an interstate carrier hauling hazardous and flammable propane. Pedroncelli testified that he took an I.C.C. examination, that he was hauling propane, and that he was on a run from Albuquerque to Alamosa, Colorado. Without recitation of the facts, there was sufficient evidence to submit the instruction to the jury. Plaintiffs do not assert that the evidence is not sufficient to bind Whitfield to the federal regulations.
Motor carrier regulations stand in the shoes of state statutes, the violation of which constitutes negligence per se. Taylor v. Pennsylvania Railroad Company, 246 F.Supp. 604 (D.Del.1965) followed in Sammons v. Ridgeway, 293 A.2d 547 (Del.Sup.1972). See Tri-State Casualty Ins. Co. v. Loper, 204 F.2d 557 (10th Cir. 1953).
Plaintiffs cannot complain that this instruction applied only to plaintiffs and not defendants — that it was not bilateral. This type of instruction may be applicable to defendants if the facts support it. If so, plaintiffs have (he duty of tendering a similar instruction or request the trial court to make it applicable to both parties.
I disagree with Judge Lopez’ opinion that this is harmless error. The failure to give this instruction is reversible error.
Defendants’ requested instruction No. 22 was an instruction based on § 64-18-1.1(c), N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 2). I disagree with Judge Lopez’ opinion that this was harmless error. The failure to give this instruction was reversible error.
Defendants’ requested instructions Nos. 4 and 9, regarding the duty of an operator of a motor vehicle to drive at such a rate of speed so as to stop in time within the range of his vision to avoid a collision, were not U.J.I. instructions and were properly refused. Section 21-l-l(51)(c)(e), N.M.S.A. 1953 (Repl.Vol. 4).
Pedroncelli’s cross-appeal is moot. He can now amend his complaint to recite a larger amount of damages claimed.