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Thomas v. State4/18/1977
her or intervening cause of the accident and ensuing deaths in this case not attributable to the Defendant, you must acquit the Defendant."
There is no evidence in the record upon which it could be properly based. Appellant's brief demonstrates its impropriety by stating its reliance upon conduct "prior to the accident" and recites various things it alleges deceased did prior to the accident. Without citation of authority, it should be evident that by the use of the word "intervening" this could apply only to something which has intruded into or come between the original negligent act and the result. We have recognized that an intervening cause arises between the original act of negligence and the accident, Gilliland v. Rhoads, Wyo., 539 P.2d 1221, 1231; Fagan v. Summers, Wyo., 498 P.2d 1227, 1229. The facts upon which appellant relies in his argument in support of this contention are an obvious attempt to inject the question of contributory negligence of the deceased Eldridge. Contributory negligence of the deceased is no defense in a case of this character, Coate v. State, 165 Tex.Crim. R., 306 S.W.2d 727, 729; State v. Romero, 69 N.M. 187, 365 P.2d 58, 60-61; State v. San Antonio, 97 R.I. 48, 195 A.2d 538, 540, and Annotation 99 A.L.R. 833, and authorities cited therein.
Tendered Instruction "D" was as follows:
"YOU ARE INSTRUCTED that, if, from the evidence in this case, you find that the Defendant acted in a reasonably prudent manner by performing every act that he could or should under the circumstances to avoid injury, you must acquit him of all charges."
It was not error to refuse this instruction. This would have been redundant and repetitious in light of other instructions given in the case touching the burden of proof; the requirement that the deaths be the result of the culpable or criminal carelessness of defendant; and the definition of culpable negligence or criminal carelessness.
The case is hereby remanded for a new trial under § 31-232(a), in conformity with what has been herein expressed.
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