¶1concurring in result.
¶2The “unavoidable accident” instruction should rarely be given. It is inappropriate in this case. Unavoidable accident is only another way of denying negligence. In the Oklahoma Uniform Jury Instructions, Civil, a comment is made after instruction number 10.9 recommending to this Court:
That no “unavoidable accident” instruction be given. The general instructions on negligence should adequately cover this area.
¶3The habit of instructing on defenses which are properly categorized as denials of allegations, can lead to incorrect burdens of proof, so that the defendant if arguing unavoidable accident as a defense to negligence becomes faced with the burden of proving the defense as though it were an affirmative defense.