Plaintiff appeals from an adverse judgment entered on a jury verdict in a negligence action arising out of an automobile accident.
The accident occurred on September 5, 1974, at about 2:00 p. m. at the intersection of Coors Road and Blake Road in the southwest quadrant of Albuquerque. The plaintiff was traveling south on Coors Road at a speed of 45 miles per hour. The defendant, who had been traveling north on Coors Road, made a left turn at the intersection intending to go west on Blake Road. During the turn and at the moment of impact she was traveling at 5 miles per hour. Coors Road at this intersection consists of two lanes in each direction, each 12 feet wide. The accident occurred in the right-hand lane of the southbound lanes, that is, the lane nearest the shoulder of the road. The view north and south from the intersection on Coors was unobstructed for a distance of 100 yards or more. The plaintiff’s vehicle had left 30 feet of skid marks. Plaintiff did not see defendant’s vehicle un*531til it was close in front of him making a left turn across his lanes of travel; defendant never saw plaintiff’s vehicle before impact.
Plaintiff’s first point of error is that the trial court erred in refusing to give his requested instruction on “sudden emergency,” N.M. U.J.I. Civ. 13.14:
“A person who, without negligence on his part, is suddenly and unexpectedly confronted with peril arising from either the actual presence of or the appearance of imminent danger to himself or another, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments.
“His duty is to exercise only the care that a reasonably prudent person would exercise in the same situation.
“If at that moment he does what appears to him to be the best thing to do, and if his choice and manner of action are the same as might have been followed by any reasonably prudent person under the same conditions then he has done all the law requires of him, even though in the light of after events, it might appear that a different course would have been better and safer.”
It is our opinion that the trial court erred, because the facts of this case require the application of the sudden emergency doctrine. A party is entitled to have the jury instructed upon his theory of the case if it is supported by substantial evidence. Mantz v. Follingstad, 84 N.M. 473, 505 P.2d 68 (Ct.App.1972).
The trial court gave defendant’s requested instruction on contributory negligence, but refused plaintiff’s requested instruction on sudden emergency. Plaintiff claims as his first point of error that refusal of the emergency instruction was error because there was substantial evidence on the issue of sudden emergency and proper objection was made when the instruction was refused. Defendant contends (1) that plaintiff’s failure to object to the contributory negligence instruction bars him from claiming on appeal that it was error for the trial court to refuse the sudden emergency instruction, and (2) that there was insufficient evidence to support the giving of the instruction on sudden emergency. We consider these contentions in order.
Defendant does not adequately explain the reasoning behind her first contention, but we understand her to mean that instructions on contributory negligence and sudden emergency are mutually inconsistent when applied to the same party. The sudden emergency instruction, supra, begins with the phrases, “A person who, without negligence on his part, is suddenly and unexpectedly confronted with peril . .” [Emphasis added.] Under defendant’s reasoning, plaintiff ought to have objected to the contributory negligence instruction in order to be able to claim that he had not contributed by his negligence to creating the sudden emergency.
It is a question of first impression in New Mexico whether instructions on contributory negligence and sudden emergency are mutually inconsistent when applied to the same party, so that a party offering the emergency instruction is required to object to an instruction on negligence or contributory negligence which might apply to him.
The sudden emergency doctrine is merely the application of the “reasonable person” standard to a situation in which a reasonable person cannot be expected to act with forethought or deliberation. It is a condition precedent to applying the doctrine that the party relying on it must not have contributed by his negligence to creating the emergency. 2 Restatement (Second) of Torts § 296 and comments b and d (1965); W. Prosser, The Law of Torts § 33 (4th ed. 1971). As we stated in a recent opinion, the fact that the party relying on the doctrine may have contributed by his negligence to causing the emergency does not preclude giving the sudden emergency instruction. It is ordinarily a question of fact for the jury whether the negligence of the party contributed to causing the emergency. If the jury finds such negligence, it does not apply the emergency doctrine; if it finds no *532such negligence, it goes on to apply the emergency doctrine. Barbieri v. Jennings, 90 N.M. 83, 559 P.2d 1210 (Ct.App.1976); Britton v. Jackson, 226 Or. 136, 359 P.2d 429 (1961). In order for the jury to follow the proper sequence, it would be desirable to precede the sudden emergency instruction by an instruction such as “If you find that the plaintiff was contributorily negligent and that his negligence contributed to causing the emergency situation, you must disregard the instruction on sudden emergency.”
Assuming that there was evidence to support giving both a contributory negligence instruction and a sudden emergency instruction, was plaintiff required to object to the contributory negligence instruction in order to be entitled to the sudden emergency instruction? We hold that he was not so required. Failure to object did not constitute an admission on plaintiff’s part that he was contributorily negligent; it constituted only a recognition by plaintiff that there was an issue of fact as to contributory negligence which it was necessary for the jury to decide before it could apply the sudden emergency instruction.
The parties are in conflict as to whether there was substantial evidence to support giving a sudden emergency instruction. Even viewing the evidence in the light most favorable to the prevailing party, as we must on appeal, we must conclude that there was sufficient evidence on the issue of sudden emergency to go to the jury. Plaintiff testified that he was watching the road ahead of him and that defendant’s car suddenly appeared making a left turn across the lanes of traffic close in front of him. He was able to apply his brakes and he thought he tried to change lanes, but he was unable to avoid a collision. For the evidence necessary to support a sudden emergency instruction, see Barbieri v. Jennings, supra; Annot., 80 A.L.R.2d 5, § 4 (1961).'
Defendant relies on Horrocks v. Rounds, 70 N.M. 73, 370 P.2d 799 (1962), but that case is distinguishable because the court determined as a matter of law that defendant (the party relying on the sudden emergency doctrine) contributed by his negligence to causing the accident. Defendant also cites Frei v. Brownlee, 56 N.M. 677, 248 P.2d 671 (1952), but in that case our Supreme Court held that it was proper for the issue of sudden emergency to go to the jury under an instruction that emphasized that the party relying on the doctrine must be free from negligence in causing the emergency. Finally, defendant cites Bellere v. Madsen, 114 So.2d 619, 80 A.L.R.2d 1 (Fla.1959); there, the implication of the holding is that the trial court should have found the defendant negligent as a matter of law, and that he was therefore not entitled to an instruction of sudden emergency.
Plaintiff’s second point of error is that the trial court erred in denying his motion for a new trial. Plaintiff’s motion was not denied by the trial court but by operation of law because a ruling had not been entered within 30 days of the filing of the motion. Nonetheless, this does not preclude our considering the matter. Montgomery Ward v. Larragoite, 81 N.M. 383, 467 P.2d 399, 42 A.L.R.3d 859 (1970). The ground for plaintiff’s motion was “that no substantial evidence supports the verdict returned by the jury.” The granting or denial of a motion for a new trial rests within the sound discretion of the trial court and its ruling will not be disturbed in the absence of a clear abuse of that discretion. State ex rel. State Highway Dept. v. Robinson, 84 N.M. 628, 506 P.2d 785 (1973). In view of the plaintiff’s own testimony, this point borders on the spurious. The trial court did not abuse its discretion.
In light of our disposition of plaintiff’s point one, the judgment is reversed and a new trial is granted.
IT IS SO ORDERED.
LOPEZ, J., concurs.
SUTIN, J., dissents.