The verdict was for defendant in this automobile accident case. Plaintiff’s appeal complains of two instructions. We discuss (1)whether the instructions can be reviewed; (2) whether the facts justify giving the instructions; and (3) evidence of negligence as negating a sudden emergency instruction.
Whether the Instructions Can be Reviewed
The two instructions pertain to sudden emergency and an excuse for violating an ordinance. Plaintiff did not request a complete record, see R.Civ.App. 7(e), and did not request that the jury instructions be included in the record on appeal, see R.Civ. App. 7(a). The instructions are not before us and this Court has not called for the district court record under R.Civ.App. 8(c). We need not consider R.Civ.App. 8(d) in holding that the instructions are before us for review.
The transcript of the conference settling the instructions shows that the trial court expressly stated that it would give U.J.I. Civ. 11.2. That is the approved instruction on excuse for violating an ordinance. The transcript also shows that plaintiff objected to the giving of U.J.I.Civ. 13.14 on sudden emergency; the trial court ruled that “I’m going to give this instruction”, and subsequent discussion as to where U.J.I.Civ. 13.14 should be inserted among other instructions. The only showing is that U.J.I.Civ. 11.2 and 13.14 were to be given and the parties do not claim they were not given.
Where the appellate transcript shows the giving of an approved instruction, review of the propriety of giving the instruction will not be denied because the instruction is not physically included in the appellate record. We can ascertain the contents of the instruction by reading it. In this case, we are informed of the contents of the two challenged instructions by reading them in Judicial Pamphlet 18, N.M.S.A. 1978.
Whether the Facts Justify Giving the Instructions
The evidence is that the accident happened when defendant’s vehicle crossed the center line of the road and collided with plaintiff’s vehicle. Plaintiff recognizes that if a sudden emergency instruction was justified under the facts, then the excuse instruction was also justified. Thus, we limit our discussion to sudden emergency.
There is evidence that it had snowed in Albuquerque the day before the accident. Defendant traveled from Bernalillo to Albuquerque on the freeway, which was dry. She left the freeway at Osuna Road and, while traveling on Osuna, encountered patches of ice. Because of this she reduced her speed.
Defendant turned off Osuna onto North Fourth Street, encountered more patches of ice and reduced her speed more.
There is evidence that while traveling north in the curb lane of Fourth Street at a speed between 5 and 15 m. p. h., and while looking for a way to leave the road, defendant encountered a sheet of ice. Upon encountering the ice sheet she may have hit the curb and she may have applied her brakes. Regardless, defendant’s car went into a slide upon encountering the ice sheet and slid across the road striking plaintiff’s car. The emergency occurred when defendant encountered the ice sheet; her action in this emergency was the basis for requesting the sudden emergency instruction.
U.J.I. Civ. 13.14 defines sudden emergency in terms of sudden and unexpected peril.
Plaintiff contends the sudden emergency instruction should not have been given because the peril (the ice sheet) “was not sudden”; that “the existence of snow or ice on the road did not present a sudden . . . peril.” This argument disregards the distinction in the evidence between encounter*323ing patches of ice and a sheet of ice. Whether the peril was sudden was a question of fact. Compare Delgado v. Alexander, 84 N.M. 456, 504 P.2d 1089 (Ct.App. 1972), aff’d, 84 N.M. 717, 507 P.2d 778 (1973).
Plaintiff also contends that, as a matter of law, the emergency resulting from encountering the ice sheet should have been anticipated (thus, not unexpected), and because the emergency should have been anticipated the sudden emergency doctrine cannot apply. See opinion of Judge Sutin in Martinez v. Schmick, 90 N.M. 529, 565 P.2d 1046 (Ct.App.1977). The evidence does not permit a holding, as a matter of law, that the ice sheet was to be anticipated in this case. The evidence is that defendant encountered an “all ice” condition only at a ditch at some unidentified point in her travel and there is no evidence that the accident happened anywhere near a ditch; rather, the accident happened on a level stretch of paved road. What defendant can be held to anticipate, under the evidence, is patches of ice, not an ice sheet covering the road. The trial court ruled that defendant “was confronted with unexpected peril.” Our view is that it was a question of fact. Compare Stehwein v. Olcott, 78 N.M. 95, 428 P.2d 634 (1967).
There was a factual basis for the sudden emergency instruction.
Evidence of Negligence as Negating a Sudden Emergency Instruction
Even if we were to agree that there was an emergency, there was evidence the emergency was caused by the defendant’s negligence; therefore, he cannot take advantage of a sudden emergency instruction.
Because there was evidence of defendant’s negligence, plaintiff, relying on the above quotation, contends the sudden emergency instruction should not have been given.
There are two answers to this contention.
Second, the correct view is stated in Martinez v. Schmick, supra, as follows:
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 such negligence, it goes on to apply the emergency doctrine.
See opinion of Judge Hernandez in Williams v. Cobb, supra. The evidence of defendant’s negligence did not bar a sudden emergency instruction. Judge Lopez’ language in Williams v. Cobb, supra, quoted above, is not to be followed because it is an incorrect statement of the law.
The judgment for defendant is affirmed. IT IS SO ORDERED.
HERNANDEZ, J., concurs.
SUTIN, J. (specially concurring).