Flanary v. Transport Trucking Stop , 78 N.M. 797 ( 1968 )

ARMIJO, Judge

(concurring in part and dissenting in part).

I concur in part and dissent in part with the majority in this case.

I concur with the conclusion that the trial court properly declined to grant a judgment notwithstanding the jury verdict.

I agree with the reasoning announced in the opinion concerning the instruction on unavoidable accident but I take a different view of the ultimate result for the reason that Instruction 4, in so far as applicable to unavoidable accident, which reads “ * * * that the accident and resulting damages complained of were the result of an unavoidable accident caused by a mechanical failure which could not have been foreseen by anyone,” does not apply the law to the facts in issue by way of defense and as shown by the evidence,

The evidence was sufficient to support a conclusion based on either of two mechanical failures.

Appellant failed to preserve the alleged error since under the rule then in effect Rule 21-1-1 (51) (g), a correct instruction was not tendered. Although the instruction as tendered was sufficient for definition purposes, it was deficient in that it did not summarize the fact developed by the evidence to sustain the defense; it was not:

“ ‘ * * * followed by its application on assumed state of facts supported by substantial evidence from which, if believed, the jury would have been authorized to find that the * * * [collision] was caused by an unavoidable accident. * * * ’ Stambaugh v. Hayes, 44 N.M. 443, 447, 103 P.2d 640, 643.”

Horrocks v. Rounds, 70 N.M. 73, 370 P.2d 799 (1962). Bailey v. Woodrum Truck Lines, 36 S.W.2d 1090 (Tex.Civ.App.1931), aff’d Woodrum Truck Lines v. Bailey, 57 S.W.2d 92 (Tex.Com.App.1933).

Although I am in agreement that an instruction on unavoidable accident should have been given, the failure to so instruct was not error under the foregoing circumstances, and the judgment should have been affirmed.