noting that “[i]t is particularly significant that no decision in this state ... has held that refusal to give the instruction was reversible error” and noting cases where refusal to give instruction was not error because “the jury was fully instructed on the general rules of liability for negligence”
How later courts described this case
- noting that “[i]t is particularly significant that no decision in this state ... has held that refusal to give the instruction was reversible error” and noting cases where refusal to give instruction was not error because “the jury was fully instructed on the general rules of liability for negligence”
- Section 22107 “does not require the 13 driver to know that a turn can be made with safety but only that he must exercise 14 reasonable care[.]”
- eliminating unavoidable accident instruction
- “The rules 10 concerning negligence and proximate causation which must be explained to the jury are in themselves complicated and difficult to understand.”
Written by the judges who cited it.
Later courts went against this
Declined to follow by Rodoni v. Hoskin, 138 Mont. 164 (1960)
We refuse to follow the rationale pronounced in Butigan v. Yellow Cab Co., supra.”
The opinion
SPENCE, J.
I dissent.
The majority reverses the judgment in this case solely because of its determination that it was prejudicial error to give any instruction on “unavoidable or inevitable” accident. In arriving at this conclusion, the majority expressly overrules Parker v. Womack, 37 Cal.2d 116 [ 230 P.2d 823 ], and impliedly overrules numerous other cases which declare that such an instruction correctly states the law.
An instruction on this subject has been given for many years by the trial judges of this state as a so-called stock instruction in negligence cases. Instructions similar to the challenged instruction have been consistently approved by the appellate courts and, as indicated by Mr. Justice Schauer, the concept of “unavoidable accident” has been given express legislative recognition in section 602 of the Vehicle Code. I therefore cannot join the majority in declaring that “the use of an unavoidable accident instruction should be disapproved” or in determining that the giving of the challenged instruction constituted error in this case.
I find no error in the record other than certain invited error, concerning which the majority properly holds that plaintiff “ is in no position to complain.’’ I would therefore affirm the judgment.
The petitions of respondents Yellow Cab Co. and Fred Wurm for a rehearing were denied February 26, 1958. Schauer, J., Spence, J., and McComb, J., were of the opinion that the petitions should be granted.