¶1DISSENTING OPINION
¶2— I do not agree with the conclusion of the majority in this case. It has always been my understanding that a party to litigation tried to a jury had a right to have his theory of the case explained to the jury by an instruction from the court when there was any evidence in the record to support such theory. In this case one of the chief contentions of appellant’s defense was that a sudden cloud burst occurred which blinded appellant just before he attempted to pull off the road and stop. It was his contention this caused the accident in which appellee was injured.
¶3The evidence of appellant was that he could see the road through the rain as he started down the hill, and then he said. “Well, I don’t know just exactly *138how far we had gotten down the hill, but there came a cloudburst and we got to where I could not see anything”. He then started to stop and pulled off the pavement onto the berm of the road. If the jury had believed this evidence it would have been sufficient to sustain a verdict that appellant was not guilty of wanton or wilful misconduct.
¶4I believe instruction No. 10 was a correct statement of the law applicable to appellant’s theory of defense. Sheets v. Stalcup (1938), 105 Ind. App. 66, 69, 13 N. E. 2d 346. I find nothing misleading in this instruction. I find nothing in it which would confine the whole “factual situation to the moment of the catastrophe”. It seems clear to me that this instruction, by telling the jury if they found appellee “was confronted with a sudden emergency which occurred without any fault on his part” (My emphasis), in effect told the jury they must consider all of the evidence relating to his operation of the automobile. In my opinion it was a correct statement of appellant’s theory of defense. If appellee desired a more specific instruction she should have tendered it. In my opinion it would not be proper to attempt to state all of the facts concerning the long drive in one instruction. An examination of the record discloses the jury was adequately instructed on the law applicable to the other facts in this case.
¶5The quotation from the case of Loehr v. Meuser (1950), 120 Ind. App. 630, 93 N. E. 2d 363, relied upon by the majority is not pertinent to the question presented in reference to this instruction. The quoted portion of that opinion relates to our rejection of appellant’s contention that the evidence most favorable to appellee was not sufficient to sustain the verdict. It did not in any way refer to an instruction outlining the appellant’s theory of defense.
¶6*139I believe the trial court committed reversible error in refusing to give to the jury instruction No. 10, and therefore this case should be reversed.
¶7Wiltrout, J., concurs in this dissent.
¶8Note. — Reported in 106 N. E. 2d 693.