OPINION
The defendants in this negligence action appeal from a $50,000.00 judgment for plaintiff. The accident occurred at a trailer park under construction by plaintiff Rice. Defendant Gideon, a dump truck driver for defendant Albuquerque Gravel Products Company, spread gravel at the construction site. On two previous occasions Rice directed Gideon’s backing and unloading from a position behind and to the left of Gideon’s truck. At the time of the accident Rice rode with Gideon to the *561beginning of the cul-de-sac where Gideon was to spread gravel. Rice pointed to where he wanted Gideon to spread and then jumped out of the truck on the right side and began running down to where he could direct the backing. Suddenly he noticed the truck, within three or four feet, backing towards him. Feeling that a rock ledge cut him off from running to the side he ran straight down the road trying to remain in the center of the truck, away from the wheels. The truck ran over him causing extensive injuries.
The trial court instructed the jury on the doctrine of last clear chance (U.J.I. 12.12 (1966)) over defendants’ objection. See § 21-1-1(51) (1) (i), N.M.S.A.1953 (Repl. Vol. 1970). Defendants argue that since the issue was neither plead nor tried the instruction was erroneous. We agree.
An instruction is proper only if plaintiff pleads the theory or it is tried by express or implied consent. Section 21 — 1— 21-1-1(51) (1) (i), N.M.S.A.1953 (Repl. 1(15) (b), N.M.S.A.1953 (Repl. Vol.1970); Thayer v. D. & G.R.R. Co., 21 N.M. 330, 154 P. 691 (1916); Reed v. Styron, 69 N.M. 262, 365 P.2d 912 (1961). See also Terry v. Terry, 82 N.M. 113, 476 P.2d 772 (1970); White v. Wayne A. Lowdermilk, Inc., 85 N.M. 100, 509 P.2d 575 (Ct.App.1973) and cases cited therein. Plaintiff did not plead last clear chance. Nor was it tried by express consent. No mention was made of last clear chance in the record until the trial court presented its instructions.
Implied consent usually is found where one party raises an issue material to the other party’s case, or where evidence is introduced without objection. 3 Moore’s Federal Practice para. 15.13 (1974). However, consent cannot be implied where the evidence introduced is relevant to some other issue and the parties do not squarely recognize it as an issue in the trial. See Gallon v. Lloyd-Thomas Company, 264 F. 2d 821, 77 A.L.R.2d 417 (8th Cir. 1959) ; Moore’s, supra.
The doctrine of last clear chance has four elements:
“(a) That the plaintiff has been negligent;
“(b) That as a result of his negligence, he is in a position of peril, from which he cannot escape by the exercise of ordinary care;
“(c) That the defendant knows, or should have known, of plaintiff’s peril; and
“(d) That defendant then had a clear chance, by the exercise of ordinary care, to avoid the injury, and that he failed to do so.”
Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028 (1960).
There is evidence in the record which would support the first three elements. However, that evidence was also relevant to other issues. Evidence relevant to element (a) was also, obviously, relevant to the issue of contributory negligence, which was plead. The same is true for evidence relevant to element (b). One of the specific acts of contributory negligence asserted was that Rice could have escaped injury by running to the side of the truck, out of its path. Plaintiff, in rebuttal, introduced evidence showing that Rice did not have the opportunity to escape to the side. That evidence was relevant both to contributory negligence and element (b) of last clear chance.
Also, the alleged act of negligence was that Gideon carelessly proceeded when he should have known that Rice was behind the truck. Testimony relevant to that issue was also relevant to element (c) of last clear chance.
Further, we fail to find any direct evidence in the record supporting element (d) of last clear chance. There was no evidence as to Gideon’s opportunity to avoid the accident once Rice was in a position of peril. Inferences from the evidence may indicate that Gideon had a “clear chance” to stop before hitting Rice. But these inferences are not enough for us *562to imply the consent of the parties to try this issue. There must be some affirmative presentation of evidence on the point. See Freitag v. The Strand of Atlantic City, 205 F.2d 778 (3rd Cir. 1953).
A reading of the record reveals that the parties did not squarely recognize last clear chance as an issue in the trial. Gallon v. Lloyd-Thomas Company, supra.
Reversed and remanded.
It is so ordered.
SUTIN, J., dissenting.
LOPEZ, J., specially concurring.