Justice HECHT,
joined by Justice OWEN, concurring.
I agree, for the reasons expressed by Chief Justice Phillips in his plurality opinion, that it was not reasonably calculated to and probably did not cause the rendition of an improper judgment in this case for the trial court to instruct the jury that “[a]n occurrence may be an ‘unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to it”. I do not, however, share his reservations about the propriety of the instruction in cases in which it has long been used.
An unavoidable accident is defined as “an event not proximately caused by the negligence of any party to it.” Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 385 (1952); see 1 State Bar of Texas, Texas Pattern Jury Charges PJC 3.04 (1987). “The issue of unavoidable accident is raised when there is evidence tending to prove that the injury resulted from some cause other than the negligence of the parties.” Orange & N.W. R.R. v. Harris, 127 Tex. 13, 89 S.W.2d 973, 975 (1936). When [475]*475Texas courts permitted submission of separate jury questions to which an affirmative answer would negate liability — called “inferential rebuttal issues” — it was reversible error to refuse to inquire of the jury whether an accident was unavoidable if there was evidence that it was. Id.; Galveston, H. & S.A Ry. v. Washington, 94 Tex. 510, 63 S.W. 534, 537-538 (1901).
Fifty years ago the unavoidable accident instruction was already entrenched in Texas jurisprudence. In Hicks v. Brown, 151 S.W.2d 790, 793 (Tex.1941), we wrote:
The rule is now too well settled in this court to be longer regarded as open to question that, where the evidence raises an issue that a plaintiffs injuries were the result of an unavoidable accident, the defendant has the right under his pleading of a general denial to have such issue separately submitted to the jury in such manner as to cast upon the plaintiff the burden of proving that his injuries were not the result of such accident.
The purpose of the instruction, we have explained, “is to call the matter to the attention of the jury, so that it will not be overlooked, and so that the jury will understand that they do not necessarily have to find that one or the other parties to the suit was to blame for the occurrence complained of.” Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449, 452 (1941).
When Texas departed from its special issue practice of submitting granulated issues to the jury and adopted a broader form of jury submission, we continued to hold that a party is entitled to have the jury told about unavoidable accident when the evidence raises the issue, although the method was by instruction rather than by issue. Compare Yarborough v. Berner, 467 S.W.2d 188, 191 (Tex.1971) (instruction) with Dixie Motor Coach Corp. v. Galvan, 126 Tex. 109, 86 S.W.2d 633, 634 (1935) (issue). The instruction, like its predecessor issue, is often referred to as being in the nature of an “inferential rebuttal”. Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477 (Tex.1978). In Lemos v. Montez, 680 S.W.2d 798, 800-801 (Tex.1984), we criticized the embellishment of jury charges with unnecessary instructions that tended to nudge the jury one way or another. Even in that context, however, we reaffirmed the use of an unavoidable accident instruction.
As recently as two terms ago this Court reaffirmed the propriety of the unavoidable accident instruction in certain cases. Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 803 (Tex.1992). We explained:
An unavoidable accident instruction is proper only when there is evidence that the event was proximately caused by a nonhuman condition and not by the negligence of any party to the event.... The instruction is ordinarily given in cases involving environmental conditions such as fog, snow, sleet, wet or slick pavement, or obstruction of view.... The instruction may also be proper when there is evidence indicating that a very young child, legally incapable of negligence, was the only human cause of the accident.... When there is no evidence that the accident was caused by some such peculiar circumstance, submission of the instruction is generally improper_ Courts should refrain from submitting an unavoidable accident instruction in other circumstances due to the risk that the jury will be misled or confused by the perception that the instruction represents a separate issue distinct from general principles of negligence ....
(Citations omitted.) The present case, involving an alleged obstruction of view, is one situation in which Hill specifically approved the use of the instruction.
Some courts have criticized the instruction, as Chief Justice Phillips cites. But it is still used in a majority of states, at least in car wreck cases like this one. George L. Blum, Annotation, Instructions on “Unavoidable Accident, ” “Mere Accident, ” or the Like, in Motor Vehicle Cases — Modem Cases, 21 A.L.R.5th 82, 105 (1994) (“The majority of courts still recognize that it is permissible for a trial judge to instruct juries in motor vehicle collision cases on the doctrine of unavoidable accident, mere accident or the like_”). Continued use of the instruction is justified. One universally regarded com[476]*476mentary, not itself entirely enamored with the instruction, has acknowledged:
Probably a majority of jurisdictions still permit the instruction in appropriate cases, however, and the instruction is still stoutly defended as helpful in focusing the issues in proper cases. Neither the unavoidable accident doctrine nor instructions thereon should be expected to wither away completely any time soon because of the notion’s underlying logical simplicity and because such instructions, properly applied, may usefully serve to translate the arcane words and concepts of the law into a common sense perspective of everyday life and experience that jurors can readily understand.
W. Page Keeton et al, PROSSER & Keeton on the Law of Torts § 29, at 164 (5th ed. 1984) (footnotes omitted).
Concern that the instruction may mislead and confuse the jury is completely unfounded. The absolute truth, of course, is that some accidents are unavoidable. How the jury may become confused from being told the truth is not clear. There is no concrete evidence to suggest that such confusion actually occurs, and if there were, I would share Justice Peeples’ observation in Perez v. Weingarten Realty Investors, 881 S.W.2d 490, 498 (Tex.App.-San Antonio 1994, writ denied) (Peeples, J., concurring):
If juries are not intellectually capable of understanding an inferential rebuttal instruction, we need to ask whether we have overestimated their capacity for exercising the vast power we have given them in deciding the controlling issues.
Witnesses and lawyers can tell the jury all they like about an accident being unavoidable and no one fears that the jury will be confused or misled. It is not clear why the idea is confusing or misleading only when the court mentions it.
Nor is the instruction redundant merely because it negatives plaintiffs case. This Court met and refuted this argument ninety-four years ago in Washington:
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Justice HECHT,
joined by Justice OWEN, concurring.
I agree, for the reasons expressed by Chief Justice Phillips in his plurality opinion, that it was not reasonably calculated to and probably did not cause the rendition of an improper judgment in this case for the trial court to instruct the jury that “[a]n occurrence may be an ‘unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to it”. I do not, however, share his reservations about the propriety of the instruction in cases in which it has long been used.
An unavoidable accident is defined as “an event not proximately caused by the negligence of any party to it.” Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 385 (1952); see 1 State Bar of Texas, Texas Pattern Jury Charges PJC 3.04 (1987). “The issue of unavoidable accident is raised when there is evidence tending to prove that the injury resulted from some cause other than the negligence of the parties.” Orange & N.W. R.R. v. Harris, 127 Tex. 13, 89 S.W.2d 973, 975 (1936). When [475]*475Texas courts permitted submission of separate jury questions to which an affirmative answer would negate liability — called “inferential rebuttal issues” — it was reversible error to refuse to inquire of the jury whether an accident was unavoidable if there was evidence that it was. Id.; Galveston, H. & S.A Ry. v. Washington, 94 Tex. 510, 63 S.W. 534, 537-538 (1901).
Fifty years ago the unavoidable accident instruction was already entrenched in Texas jurisprudence. In Hicks v. Brown, 151 S.W.2d 790, 793 (Tex.1941), we wrote:
The rule is now too well settled in this court to be longer regarded as open to question that, where the evidence raises an issue that a plaintiffs injuries were the result of an unavoidable accident, the defendant has the right under his pleading of a general denial to have such issue separately submitted to the jury in such manner as to cast upon the plaintiff the burden of proving that his injuries were not the result of such accident.
The purpose of the instruction, we have explained, “is to call the matter to the attention of the jury, so that it will not be overlooked, and so that the jury will understand that they do not necessarily have to find that one or the other parties to the suit was to blame for the occurrence complained of.” Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449, 452 (1941).
When Texas departed from its special issue practice of submitting granulated issues to the jury and adopted a broader form of jury submission, we continued to hold that a party is entitled to have the jury told about unavoidable accident when the evidence raises the issue, although the method was by instruction rather than by issue. Compare Yarborough v. Berner, 467 S.W.2d 188, 191 (Tex.1971) (instruction) with Dixie Motor Coach Corp. v. Galvan, 126 Tex. 109, 86 S.W.2d 633, 634 (1935) (issue). The instruction, like its predecessor issue, is often referred to as being in the nature of an “inferential rebuttal”. Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477 (Tex.1978). In Lemos v. Montez, 680 S.W.2d 798, 800-801 (Tex.1984), we criticized the embellishment of jury charges with unnecessary instructions that tended to nudge the jury one way or another. Even in that context, however, we reaffirmed the use of an unavoidable accident instruction.
As recently as two terms ago this Court reaffirmed the propriety of the unavoidable accident instruction in certain cases. Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 803 (Tex.1992). We explained:
An unavoidable accident instruction is proper only when there is evidence that the event was proximately caused by a nonhuman condition and not by the negligence of any party to the event.... The instruction is ordinarily given in cases involving environmental conditions such as fog, snow, sleet, wet or slick pavement, or obstruction of view.... The instruction may also be proper when there is evidence indicating that a very young child, legally incapable of negligence, was the only human cause of the accident.... When there is no evidence that the accident was caused by some such peculiar circumstance, submission of the instruction is generally improper_ Courts should refrain from submitting an unavoidable accident instruction in other circumstances due to the risk that the jury will be misled or confused by the perception that the instruction represents a separate issue distinct from general principles of negligence ....
(Citations omitted.) The present case, involving an alleged obstruction of view, is one situation in which Hill specifically approved the use of the instruction.
Some courts have criticized the instruction, as Chief Justice Phillips cites. But it is still used in a majority of states, at least in car wreck cases like this one. George L. Blum, Annotation, Instructions on “Unavoidable Accident, ” “Mere Accident, ” or the Like, in Motor Vehicle Cases — Modem Cases, 21 A.L.R.5th 82, 105 (1994) (“The majority of courts still recognize that it is permissible for a trial judge to instruct juries in motor vehicle collision cases on the doctrine of unavoidable accident, mere accident or the like_”). Continued use of the instruction is justified. One universally regarded com[476]*476mentary, not itself entirely enamored with the instruction, has acknowledged:
Probably a majority of jurisdictions still permit the instruction in appropriate cases, however, and the instruction is still stoutly defended as helpful in focusing the issues in proper cases. Neither the unavoidable accident doctrine nor instructions thereon should be expected to wither away completely any time soon because of the notion’s underlying logical simplicity and because such instructions, properly applied, may usefully serve to translate the arcane words and concepts of the law into a common sense perspective of everyday life and experience that jurors can readily understand.
W. Page Keeton et al, PROSSER & Keeton on the Law of Torts § 29, at 164 (5th ed. 1984) (footnotes omitted).
Concern that the instruction may mislead and confuse the jury is completely unfounded. The absolute truth, of course, is that some accidents are unavoidable. How the jury may become confused from being told the truth is not clear. There is no concrete evidence to suggest that such confusion actually occurs, and if there were, I would share Justice Peeples’ observation in Perez v. Weingarten Realty Investors, 881 S.W.2d 490, 498 (Tex.App.-San Antonio 1994, writ denied) (Peeples, J., concurring):
If juries are not intellectually capable of understanding an inferential rebuttal instruction, we need to ask whether we have overestimated their capacity for exercising the vast power we have given them in deciding the controlling issues.
Witnesses and lawyers can tell the jury all they like about an accident being unavoidable and no one fears that the jury will be confused or misled. It is not clear why the idea is confusing or misleading only when the court mentions it.
Nor is the instruction redundant merely because it negatives plaintiffs case. This Court met and refuted this argument ninety-four years ago in Washington:
It is claimed by counsel for appellee [the plaintiff] that the defense [of unavoidable accident] was covered by the general charge of the court in which the jury were instructed: “The burden of proof is upon the plaintiff to prove by a preponderance of the evidence each material allegation in his petition upon which he relies for recovery; and if the jury believe, from the evidence, that the plaintiff has failed to prove by a preponderance any one or more of the allegations of his petition, upon all such issues they will find for the defendant.” In its general charge the court stated to the jury that the issues presented on the part of the plaintiff were that his injury was occasioned by the negligence of the defendant, specifying particularly the acts of negligence which produced the injury, and that the defendant pleaded a general denial and contributory negligence on the part of the injured boy. We must look at the court’s charge as practical experience teaches that a jury, untrained in the law, would view it; and, so regarding it, we are of opinion that a jury might not have understood that the general denial made the issue of unavoidable accident, or that the injury had occurred in a manner not alleged and claimed by the plaintiff, neither of which issues was expressed in the charge of the court. While it is true that the general terms in which the court’s charge is expressed would, as matter of law, include [unavoidable accident], ... it is not to be supposed that the jury considered an issue not developed by the charge of the court.
68 S.W. at 538 (emphasis added). What we said ninety-four years ago is no less true today. While it is possible to deduce from standard instructions on ordinary care, negligence and proximate cause that some accidents are no one’s fault, a party is entitled to have that fact pointed out to a jury, untrained in the law. It bears repeating: “it is not to be supposed that the jury considered an issue not developed by the charge of the court.” Id.
This Court has approved of other inferential rebuttal instructions in numerous cases. E.g., Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 754-755 (Tex.1993) (sole proximate cause); Scott v. Atchison, T. & S.F. Ry., 572 S.W.2d 273, 279 (Tex.1978) (act of God); McDonald Transit, Inc. v. Moore, 565 S.W.2d [477]*47743, 45 (Tex.1978) (sudden emergency); Davi-la v. Sanders, 557 S.W.2d 770, 771 (Tex.1977) (per curiam) (sudden emergency); Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87, 90-91 (Tex.1973) (sole proximate cause); Del Bosque v. Heitmann Bering-Cortes Co., 474 S.W.2d 450, 452-453 (Tex.1971) (sudden emergency); Yarborough v. Berner, 467 S.W.2d 188, 190-191 (Tex.1971) (sudden emergency; unavoidable accident); Texas Motor Coaches, Inc. v. Palmer, 132 Tex. 77, 121 S.W.2d 323, 323-324 (1938) (new and independent cause); Tarry Warehouse & Storage Co. v. Duvall, 131 Tex. 466, 115 S.W.2d 401, 405 (1938) (new and independent cause); Young v. Massey, 128 Tex. 638, 101 S.W.2d 809, 810 (1937) (new and independent cause); Southland Greyhound Lines, Inc. v. Cotten, 126 Tex. 596, 91 S.W.2d 326, 327-328 (1936) (new and independent cause); Orange & N.W. R.R. v. Harris, 127 Tex. 13, 89 S.W.2d 973, 975 (1936) (new and independent cause; unavoidable accident); Dixie Motor Coach Corp. v. Galvan, 126 Tex. 109, 86 S.W.2d 633, 634 (1935) (new and independent cause; sole proximate cause; unavoidable accident); Phoenix Ref. Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60, 61-62 (1935) (new and independent cause). Just as we have continued to approve these instructions, an unavoidable accident instruction is equally proper in appropriate cases, like the present one.
The district court did not err in giving the jury an unavoidable accident instruction. Accordingly, I concur in the judgment of the Court.