OPINION
APODACA, Judge.
Plaintiff appeals a jury verdict in her favor against defendant for damages resulting from an automobile accident. Plaintiff argues three issues on appeal: the trial court erred in (1) refusing to give a jury instruction on sudden emergency, (2) ruling that plaintiff could not recover costs from defendant because she was not the prevailing party, and (3) awarding defendant all of his costs. We hold that plaintiff was entitled to an instruction on sudden emergency because there was sufficient evidence to support the giving of the instruction under the facts of this appeal. We therefore reverse and remand for a new trial on the issue of liability and damages. We address the trial court’s award of costs because the issue will likely recur at trial.
BACKGROUND
In its verdict, the jury assessed plaintiff’s damages at $91,267.30, and apportioned negligence 76% to defendant and 24% to plaintiff under the trial court’s comparative negligence instruction. The trial court entered judgment, reducing plaintiff’s net award of $69,363.15 ($91,267.30 X .76) by an additional $14,737.93, which represented defendant’s costs incurred after defendant made an offer of $70,000.00, inclusive of costs, under SCRA 1986, 1-068-(Rule 68).
Plaintiff appealed the judgment itself in Cause No. 11,907. In Cause No. 11,933, she appealed from a post-trial order denying her motions for a new trial, additur, reconsideration, and objection to costs. This court consolidated the two appeals and directed the parties to brief the issue of whether the trial court’s order denying plaintiff’s post-trial motions was appeal-able. The parties agree that the trial court’s order denying the motions for a new trial and reconsideration of the judgment are not appealable. See Labansky v. Labansky, 107 N.M. 425, 759 P.2d 1007 (Ct.App.1988); Harrison v. ICX, Illinois-California Express, Inc., 98 N.M. 247, 647 P.2d 880 (Ct.App.1982). Thus, we will not consider these two issues raised in Cause No. 11,933. Because plaintiff did not brief the additur issue, we consider it abandoned. See State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985).
Plaintiff’s appeal from the award of costs raised in Cause No. 11,933 is properly before this court. See SCRA 1986, 12-216. Before the entry of judgment, plaintiff objected to defendant’s proposed costs both by motion and at the hearing on September 27, 1989. Additionally, plaintiff requested that the trial court award her costs, arguing that she was the prevailing party. We discuss this issue only because it will likely recur at trial. Consequently, we need not consider plaintiff’s motions to supplement the record with a letter from the trial judge to counsel, dated October 2, 1989 (letter opinion denying plaintiff’s requests for her costs), and with a copy of her cost bill filed pursuant to SCRA 1986, 12-209(C). FACTS
In September 1985, plaintiff and defendant were involved in an automobile collision at the intersection of St. Michael’s Drive and Pacheco Street in Santa Fe. There are no traffic control signals at that intersection. The speed limit on St. Michael’s Drive where the accident occurred is forty five miles per hour. Plaintiff was driving west on St. Michael’s Drive. Defendant was driving east on St. Michael’s Drive.
Defendant testified that he drove into the left turn bay at the intersection. He slowed to allow one or two cars that were westbound on St. Michael’s Drive to pass and then accelerated to about five to ten miles per hour into a left-hand turn onto Pacheco Street across the westbound lanes of St. Michael’s Drive. He denied seeing plaintiff’s vehicle before the collision. He stated that, from the time he commenced his turn to the time of impact, no more than four or five seconds elapsed.
Officer Rael, a municipal police officer who assisted in the investigation of the accident, testified that the physical evidence, such as skid marks beginning in the middle lane and veering to the right, indicated that plaintiff had been traveling in the middle lane of St. Michael’s Drive, that she had hit the brakes of her car, and that she had then veered to the right. He concluded from this evidence that plaintiff had tried to avoid the accident. There was no evidence that defendant braked or took evasive action. Defendant received a traffic citation for failing to yield the right of way. Plaintiff recalls nothing about the accident and was unable to testify about the event. There were no other witnesses to the accident.
DISCUSSION
1. Denial of Sudden Emergency Instruction.
At trial, plaintiffs theory of the case was that she had been confronted with a sudden emergency when defendant turned his vehicle into her path of travel. She requested the trial court to give a sudden emergency instruction tracking the language of SCRA 1986, 13-1617 (Repl.1991). The trial court refused the instruction on the grounds that the evidence did not support the giving of a sudden emergency instruction because plaintiff had been unable to testify about the accident and the jury would thus be required to speculate. Plaintiff claims that refusal of the instruction was reversible error warranting the granting of a new trial because New Mexico law requires the giving of the sudden emergency instruction under the facts presented in this appeal. We agree.
A party is entitled to have “an instruction on his theory of a case if it has been properly pled and there is evidence upon which the theory might be supported.” McNeely v. Henry, 100 N.M. 794, 800, 676 P.2d 1359,1365 (Ct.App.1984) (trial court’s failure to instruct on sudden emergency was reversible error). The narrow issue before us is whether the evidence supported the giving of an instruction on sudden emergency.
Uniform Jury Instruction 13-1617 states:
A person who, without negligence on [his] [her] part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence or the appearance of an imminent danger to [himself] [herself] or another, is not expected nor required to use the same judgment and prudence that is required of [him] [her] in the exercise of ordinary care in calmer and more deliberate moments.
[His] [Her] duty is to exercise only the care that a reasonably prudent person would exercise in the same situation.
If, at that moment, [he] [she] does what appears to [him] [her] to be the best thing to do and if [his] [her] choice and manner of action are the same as might have been followed by any reasonably prudent person under the same conditions, then [he] [she] has done all that the law requires of [him] [her], even though, in the light of after events, it might appear that a different course would have been better and safer.
Plaintiff relies on Martinez v. Schmick, 90 N.M. 529, 565 P.2d 1046 (Ct.App.1977), and Scofield v. J. W. Jones Constr. Co., 64 N.M. 319, 328 P.2d 389 (1958), to support her argument that she was entitled to the instruction.
In Martinez, plaintiff’s vehicle struck the defendant’s vehicle while the defendant was making a left turn. The trial court instructed the jury on defendant’s theory of the case, which was that plaintiff was contributorily negligent, but it refused to give the sudden emergency instruction. This court held that “the trial court erred, because the facts of this case require the application of the sudden emergency doctrine.” Martinez, 90 N.M. at 531, 565 P.2d at 1048 (emphasis added). In Scofield, defendant’s truck was struck by plaintiff’s car as defendant was turning left. Defendant objected to the trial court’s instruction on sudden emergency. The jury was also instructed on defendant’s theory of the case, which was that plaintiff was contributorily negligent and had failed to exercise reasonable care to avoid the collision. Our supreme court stated that, because the contributory negligence instruction was given, “we think it was no more than fair that the instruction on sudden emergency should be given. Absent such action the jurors may well have thought [plaintiff] swerved the wrong way and was therefore guilty of contributory negligence, even though he was acting in a sudden emergency.” Scofield, 64 N.M. at 327, 328 P.2d at 394. We believe that the facts of this appeal are indistinguishable from the facts of Martinez and Scofield. This is so even though the comparative negligence doctrine had not been adopted when those cases were decided. See Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981). Instead, the jury in each case had been instructed on contributory negligence. In our view, consideration of the existence of a sudden emergency may affect equally determinations of either contributory negligence or comparative negligence. See Baxter v. Noce, 107 N.M. 48, 752 P.2d 240 (1988) (doctrine of contributory negligence subjected to comparative negligence analysis).
Defendant raises numerous arguments to support the trial court’s refusal to instruct on sudden emergency. He first claims that the instruction was not applicable to the facts of this appeal because the evidence was insufficient to warrant the giving of the instruction. Thus, defendant contends, the instruction would require the jury to speculate. We believe the authorities defendant relies on in support of these contentions are distinguishable from the facts of this appeal. Archibeque v. Homrich, 88 N.M. 527, 543 P.2d 820 (1975), for example, involved a one-car accident in which both the driver and passenger died. There were no witnesses to the accident and no physical evidence as to its cause. Because there was no evidence, our supreme court held that giving the sudden emergency instruction was error since it was based solely on conjecture. Id. at 531, 543 P.2d at 824. Similarly, in Aragon v. Speelman, 83 N.M. 285, 491 P.2d 173 (Ct.App.1971), there was no evidence that a bicyclist struck and killed by a car had been startled by the car and either created or reacted to an emergency situation. In Delgado v. Alexander, 84 N.M. 456, 504 P.2d 1089 (Ct.App.), aff'd, 84 N.M. 717, 507 P.2d 778 (1973), the uncontradicted evidence was that the defendant driver, who struck the plaintiff as she was crossing a street, was already applying his brakes before he saw the plaintiff and thus was not reacting to any emergency. Id. 84 N.M. at 458, 507 P.2d at 1091.
In this appeal, viewing the evidence in the light most favorable to the prevailing party, there was evidence from which a jury could infer that plaintiff reacted to an emergency. This evidence included defendant’s testimony that he did not see plaintiff and that there were other cars on the road, from which a jury could infer she could not see him until he was in the intersection. The skid marks indicated that plaintiff reacted suddenly, braking and veering to the right. This was competent evidence supporting the giving of the sudden emergency instruction. See Scofield v. J. W. Jones Constr. Co.; Martinez v. Schmick.
Defendant next argues that the jury was adequately instructed on the standard of care applicable to plaintiff and that a sudden emergency instruction would have been repetitive. We disagree.
The trial court’s instruction on “ordinary care” stated:
“Ordinary care” is that care which a reasonably prudent person would use in the conduct of his own affairs. What constitutes “ordinary care” varies with the nature of the what is being done. As the risk of danger that should reasonably be foreseen increases, the amount of care required also increases. In deciding whether ordinary care has been used, the conduct in question must be considered in the light of all the surrounding circumstances.
Defendant contends that this language is substantially the same as that found in UJI Civil 13-1617, which states in part that the duty of a person confronted with a sudden emergency “is to exercise only the care that a reasonably prudent person would exercise in the same situation.” Defendant also notes that the sudden emergency instruction is simply the application of the “reasonable person” standard to a situation where careful deliberation is impossible. Martinez v. Schmick. He urges us to follow the lead of other jurisdictions that have abandoned or criticized use of the sudden emergency instruction. See, e.g., DiCenzo v. Izawa, 723 P.2d 171 (Haw.1986); Knapp v. Stanford, 392 So.2d 196 (Miss.1980); Simonson v. White, 220 Mont. 14, 713 P.2d 983 (1986).
We are not persuaded to do so. UJI Civil 13-1617 states that the standard of care to be applied in an emergency situation differs from the usual standard of care: “A person who ... is suddenly and unexpectedly confronted with peril ... is not expected nor required to use the same judgment and prudence that is required of [him] [her] in the exercise of ordinary care in calmer and more deliberate moments.” Additionally, many jury instructions address the proper standard of care due in particular situations. See, e.g., UJI Civil, Ch. 13 (tort liability of owners and occupiers of land). In a similar vein, the instruction at issue in this appeal addresses a particular situation that commonly arises— the sudden emergency. See Young v. Clark, 814 P.2d 364, 368 (Colo.1991) (Colorado’s sudden emergency instruction “obligates the finder of fact to do nothing more than apply the objective ‘reasonable person’ standard to the actor in the specific context of an emergency situation.”). Thus, instructing the jury on the standard of care applicable in a specific situation is not superfluous. Cf. McCrary v. Bill McCarty Constr. Co., 92 N.M. 552, 591 P.2d 683 (Ct.App.1979). Finally, our supreme court has held that, in situations similar to the facts of this appeal, the sudden emergency instruction must be given. See Scofield v. J. W. Jones Constr. Co. We are bound by decisions of our supreme court. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).
Defendant also argues that a party who negligently contributed to creating the emergency is not entitled to the sudden emergency instruction. See Madsen v. Read, 58 N.M. 567, 273 P.2d 845 (1954); Martinez v. Schmick. Defendant claims that, because the jury found plaintiff to be 24% negligent, she was not entitled to the instruction, and it was thus harmless error to refuse the instruction. We disagree. Evidence that a party may have been negligent does not preclude the giving of the instruction; the issues of contributory negligence and the applicability of the sudden emergency doctrine are both questions of fact for the jury. Martinez v. Schmick; Barbieri v. Jennings, 90 N.M. 83, 559 P.2d 1210 (Ct.App.1976). Consequently, in this appeal, because the jury was not properly instructed on plaintiff’s theory of the case, it may have applied an improper standard of care in concluding that plaintiff was partially at fault for the accident. See Scofield v. J. W. Jones Constr. Co. (without instruction on sudden emergency, jury may have believed plaintiff was contributorily negligent even though he reacted to sudden emergency). Additionally, the jury had no opportunity to determine if the sudden emergency doctrine applied. McNeely v. Henry. Thus, failure to give the instruction was not harmless. Defendant relies on Bachicha v. Lewis, 105 N.M. 726, 737 P.2d 85 (Ct.App.1987), in which this court held that the giving of the sudden emergency instruction was reversible error because it injected false issues into the case. We believe Bachicha is distinguishable. In that case, the uncontradicted evidence showed only that defendant was negligent, not that she reacted to a sudden emergency. On the other hand, as we noted previously, the evidence here could very well support a finding that plaintiff reacted to a sudden emergency.
Defendant next argues that the evidence was insufficient to support the giving of the instruction because there was no evidence that plaintiff had more than one course of action. See Anderson v. Latimer, 166 Cal.App.3d 667, 212 Cal.Rptr. 544 (Ct.App.1985). He relies not only on Officer Rael’s testimony that plaintiff had no other options, but also on plaintiff’s inability to testify directly about the accident. This argument evidently persuaded the trial court in refusing the requested instruction, because it ruled that there was no direct evidence of a sudden emergency. We reject defendant’s argument for two reasons. First, the jury is free to reject uncontradicted expert opinion evidence. See Dickenson v. Regent of Albuquerque, Ltd., 112 N.M. 362, 815 P.2d 658 (Ct.App.1991). Second, circumstantial evidence is sufficient to support the giving of the instruction. See Romero v. State, 112 N.M. 291, 814 P.2d 1019 (Ct.App.), aff'd in part, 112 N.M. 332, 815 P.2d 628 (1991); Gapske v. Hatch, 347 Mich. 648, 81 N.W.2d 337 (1957). Thus, neither the expert opinion testimony nor plaintiffs inability to testify directly as to the accident dictates that the instruction was not warranted.
Based on Officer Rael’s testimony that the skid marks began in the middle lane, a jury could have inferred that plaintiff had at least four different courses of action to choose from before the collision: (1) proceeding straight ahead without braking; (2) braking without swerving; (3) braking and swerving left; and (4) braking and swerving right. The physical evidence indicated that plaintiff chose the last alternative. In determining that plaintiff was partly at fault, the jury could have inferred that plaintiff chose the wrong option. The sudden emergency instruction could have affected the jury’s determination of whether plaintiff met the standard of care required of her in a sudden emergency. See Scofield v. J.W. Jones Constr. Co.
Defendant also contends that the sudden emergency instruction would have conflicted with a jury instruction regarding each driver’s statutory duty to yield the right of way at an intersection. Again, we disagree. The sudden emergency instruction has been held to be compatible with similar instructions. See Barbieri v. Jennings, 90 N.M. at 85, 559 P.2d at 1212 (proper to instruct on sudden emergency and on duties of person confronted with emergency to keep a proper lookout, keep car under control, not to drive too fast for the road conditions, and not to drive on wrong side of the road). Additionally, our supreme court has held that it is proper to instruct on both the statutory duty to yield the right of way in an intersection and on the sudden emergency doctrine. Scofield v. J.W. Jones Constr. Co.
Defendant finally claims that, if a new trial is ordered, it should be limited to the issue of liability because the issue of damages was not appealed. See Tipton v. Texaco, 103 N.M. 689, 712 P.2d 1351 (1985). However, plaintiff not only appealed the entire judgment, which included the award of damages, but argued that the failure to instruct the jury on sudden emergency tainted the award of damages, presumably because comparative negligence was at issue. We thus believe a new trial on all issues is warranted.
2. Trial Court’s Refusal to Award Plaintiff Costs.
The trial court assessed plaintiff for defendant’s costs but did not award plaintiff any costs. She argues: (1) that as a prevailing party she is entitled to her costs; and (2) defendant cannot recover his costs under SCRA 1986, 1-068 of the New Mexico Rules of Civil Procedure. Construing these two rules together, we hold that, where the judgment finally obtained is for less than the offer of judgment, the offeree is entitled to recover his pre-offer costs but is not entitled to post-offer costs and must also pay the offeror’s post-offer costs. As part of her argument, plaintiff also urges that defendant is not entitled to his costs under Rule 68 because, when plaintiff’s pre-offer costs are added to the net judgment, it exceeds the amount of defendant's offer. We do not reach that issue for two reasons: First, plaintiff did not raise the question before the court in the September 27, 1989 hearing. Second, plaintiff did not make her cost bill a part of the record so that we could determine whether the argument has any merit. See SCRA 1986, 12-216 (“To preserve a question for review it must appear that a ruling or decision was fairly invoked____”).
This court reviews the trial court’s award of costs under SCRA 1986, 1-054(E) (Rule 54(E)) for an abuse of discretion. Pioneer Sav. & Trust, F.A., v. Rue, 109 N.M. 228, 784 P.2d 415 (1989). We may also remand for a redetermination of the issues if it appears the trial court’s decision was founded upon an error of law. Garcia v. Sanchez, 108 N.M. 388, 395, 772 P.2d 1311, 1318 (Ct.App.1989). On those premises, we will discuss the interplay of Rule 54(E) and SCRA 1986, 1-068 (Rule 68).
Rule 54(E) provides that the prevailing party may recover his or her costs. The trial court concluded that plaintiff was not the prevailing party, holding that Rule 68, as an “express provision” for the award of costs, superseded the general rule under Rule 54(E). The court also concluded that plaintiff had recovered less than defendant’s offer .of judgment, and, consequently, she could not be a prevailing party as a matter of law. We disagree with this interpretation.
The phrase “to the prevailing party” means the party who wins the lawsuit. South v. Lucero, 92 N.M. 798, 595 P.2d 768 (Ct.App.1979). Because plaintiff recovered a judgment, she is a prevailing party even though her recovery was reduced. See State Trust & Sav. Bank v. Hermosa Land & Cattle Co., 30 N.M. 566, 240 P. 469 (1925) (one recovering judgment, but reduced in amount of damages awarded in recoupment, was the prevailing party and should recover costs under former law). As stated in Mountain States Broadcasting v. Neale, 776 P.2d 643 (Utah 1989):
Typically, determining the “prevailing party” for purposes of awarding fees and costs is quite simple. Plaintiff sues defendant for money damages; if plaintiff is awarded a judgment, plaintiff has prevailed, and if defendant successfully defends and avoids an adverse judgment, defendant has prevailed.
Id. at 648. Under the facts of this appeal, plaintiff recovered a money judgment. Thus, we conclude she was the prevailing party for purposes of Rule 54(E) and could recover her costs.
Rule 68 modifies the application of Rule 54(E), however. In part, that rule states that “[i]f the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.” (emphasis added.) Thus, Rule 68 applies only to those costs incurred after the offer was made and rejected. It does not address the disposition of the prevailing party’s costs incurred before the offer of settlement was made. Additionally, Rule 68 does not change the commonly accepted definition of “prevailing party” under Rule 54(E). See South v. Lucero. Thus, a party who rejected a settlement offer and subsequently prevailed on the issues but received less than the offer should still be considered the prevailing party and be entitled to receive costs incurred before the settlement offer was made. See Whitney v. Anderson, 784 P.2d 830 (Colo.Ct.App.) (prevailing plaintiff whose recovery was less than the offer of judgment entitled to recover pre-offer costs but must pay defendant’s post-offer costs), cert, denied (Colo.1989). However, a plaintiff who recovers less than the settlement offer “must pay the costs incurred after the making of the offer.” R. 1-068; see also Dickenson v. Regent of Albuquerque, Ltd. We interpret this language as referring to the costs incurred by both parties. Thus, in such a situation, a plaintiff would not be able to recover his or her post-offer costs and would have to pay the defendant’s post-offer costs. See Whitney v. Anderson.
We consider Tippie v. Delisle, 55 Wash.App. 417, 777 P.2d 1080 (1989), review denied, 114 Wash.2d 1003, 788 P.2d 1078 (1990), relied on by both the trial court and defendant, as distinguishable. In that case, the court held that a party who rejected a Rule 68 offer and obtained a judgment less than the offer was not a prevailing party. However, that decision was based in part on the fact that, under Washington law, the civil rule promulgated by the Washington Supreme Court had precedence over procedural statutes. In this appeal, both procedural rules have equal stature. We therefore decline to follow Tippie.
3. Award of Costs to Defendant.
The trial court awarded defendant all costs listed in his cost bill. Plaintiff objected to the cost bill, claiming that defendant was requesting reimbursement for items not properly allowed under statute or case law. Defendant argues that Rule 68 authorizes costs in this case and that specific statutory authority for each item of cost is unnecessary because the matter lies within the discretion of the trial court. We disagree. We believe that a recovery of costs under Rule 68 should be evaluated in the same manner as a recovery of costs by the prevailing party under Rule 54. New Mexico law is clear that costs may be recovered only when authorized by statute, Swallows v. Laney, 102 N.M. 81, 86, 691 P.2d 874, 879 (1984), or by “rule of the court as authorized by statute.” Jimenez v. Foundation Reserve Ins. Co., 107 N.M. 322, 327, 757 P.2d 792, 797 (1988).
Plaintiff has objected to numerous expenses listed by defendant in his cost bill, including taxi and parking expenses, service of process fees for individuals who did not testify at trial, deposition fées for depositions that were not used at trial, deposition fees for unnecessary depositions, a $75 witness fee where defendant’s ' cost bill fails to indicate which witness received the fee, costs for three expert witnesses on damages, and expenses incurred for photocopies.
“The trial court has discretion in assessing costs, and its ruling will not be disturbed on appeal unless it was an abuse of discretion.” Mascarenas v. Jaramillo, 111 N.M. 410, 415, 806 P.2d 59, 64 (1991). Costs that have been held to be within the court’s discretion to award include those for depositions, witness fees, transcript fees, special master’s fees, filing fees, lis pendens, service of process, and a receiver’s fee. Pioneer Sav. & Trust, F.A., v. Rue, 109 N.M. at 231, 784 P.2d at 418. Additionally, our supreme court has held an award of costs for photocopies was not an abuse of discretion. See Budagher v. Sunnyland Enters., Inc., 90 N.M. 365, 367, 563 P.2d 1158, 1160 (1977).
We conclude that plaintiff has not demonstrated that the trial court abused its discretion in allowing defendant to recover all costs contained in defendant’s cost bill, except for the costs of a taxi and parking associated with a deposition ($95) and for the witness fee where the witness was not identified in the cost bill ($75). We can find no statutory or other authority for these items.
Generally, expenses incurred in taking depositions are a proper item of costs. See NMSA 1978, § 39-2-7 (Repl. Pamp.1991). Our supreme court has held that the cost of depositions may be assessed if the deposition was reasonably necessary even if the deposition is not used at trial. See Davis v. Severson, 71 N.M. 480, 490, 379 P.2d 774, 780 (1963); see also Mantz v. Follingstad, 84 N.M. 473, 481, 505 P.2d 68, 76 (Ct.App.1972) (court vested with broad discretion in awarding costs, including those incurred in taking reasonably necessary deposition even if not used at trial). The determination of whether a deposition is reasonably necessary lies within the discretion of the trial court. Plaintiff has not shown that the trial court abused its discretion in determining that the deposition costs were necessary.
Statutory law permits the recovery of costs incurred in employing a witness “who qualifies as an expert and who testifies in the cause in person or by deposition.” NMSA 1978, § 38-6-4(B) (Repl.Pamp.1987). The statute limits the fees allowed, however, to one expert on liability and one on damages “unless the court finds that additional expert testimony was reasonably necessary to the prevailing party and the expert testimony was not cumulative.” Id. Plaintiff argues that defendant’s cost bill includes expenses incurred for three expert witnesses on the issue of damages and that the burden is on defendant to show the necessity of the additional testimony. Defendant contends that the three experts testified on different subjects. Plaintiff has not disputed this assertion. Additionally, our supreme court has held that separate findings of reasonable necessity by the trial court is not required to support allowance of costs for more than one expert under the statute. See Ulibarri v. Gee, 106 N.M. 637, 748 P.2d 10 (1987). For these reasons, we conclude that the trial court did not abuse its discretion in allowing defendant to recover costs for three expert witnesses on damages.
CONCLUSION
Because we hold that there was sufficient evidence to support the giving of the sudden emergency instruction, we conclude that it was reversible error for the trial court to refuse the instruction. Failure to give the instruction was tantamount to a failure to instruct the jury on plaintiffs theory of the case, to which she was entitled. We therefore reverse and remand for a new trial consistent with this opinion. We set aside the trial court’s award of costs because we are remanding for a new trial. At trial, the trial court shall consider the previous offer of judgment or any additional offers of judgment, if any, together with the guidelines on costs contained in this opinion, in determining assessment of costs after trial. Plaintiff is awarded her costs on appeal.
IT IS SO ORDERED.
CHAVEZ, J., concurs. BIVINS, J., concurs in part and dissents in part and files opinion.