We, therefore, consider plaintiffs' contentions. In giving UJI Civ. 15.3, the trial court relied on Whitfield Tank Lines Inc. v. Navajo Freight Lines, Inc., 90 N.M. 454, 564 P.2d 1336 (Ct.App. 1977), which held it was reversible error not to give the form of the uniform jury instruction with the excuse or justification language under the facts of that case. In Whitfield, there was evidence that while the defendant-driver had encountered snowdrifts before the accident, none had caused his tractor-trailer to jackknife.

The burden of proof is on the person who violated the statute. Hayes v. Hagemeier, 1963-NMSC-095, ¶ 22, 400 P.2d 945 (citation omitted); see also Whitfield Tank Lines, Inc. v. Navajo Freight Lines, Inc., 1977-NMCA-052, ¶ 17, 564 P.2d 1336 (finding there was evidence in the record that "could very well have excused a violation of a statute, or at least make the violation [a] jury question."). Here, Defendant Henry has not met her burden to show that leaving the scene of the accident was excusable, nor has she provided any facts which would create a genuine issue about whether her action was excusable.

It is within the purview of the jury to determine whether these facts excused Defendant Conner's violation of a statute. See United States v. Keck, 643 F.3d 789, 793 (10th Cir. 2011) (purview of jury "to resolve conflicting testimony, weigh the evidence, and draw inferences from the facts presented"); Whitfield Tank Lines, Inc. v. Navajo Freight Lines, Inc., 1977-NMCA-052 ¶ 17, 564 P.2d 1336, 1340 (excuse or justification instruction proper when evidence supports party's theory). Therefore, the inclusion of excuse or justification in Jury Instruction No. 6 and Jury Instruction No. 17 did not constitute prejudicial error.

Bachicha stands in contrast to Whitfield Tank Lines, Inc. v. Navajo Freight Lines, Inc., where the Court of Appeals held that it was reversible error not to provide the jury with an excuse/justification instruction. Whitfield Tank Lines, Inc. v. Navajo Freight Lines, Inc., 564 P.2d 1336 (N.M.App. 1977). InWhitfield, two tractor trailers collided when the southbound truck (Navajo) entered a snowdrift and suddenly jackknifed, sliding across the lanes and into the path of the northbound truck (Whitfield).

This is not a case where the two instructions were repetitious or contradictory or unduly emphasized evidence introduced by a party. Cf. Whitfield Tank Lines, Inc. v. Navajo Freight Lines, Inc., 90 N.M. 454, 459, 564 P.2d 1336, 1341 (Ct.App.), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977). II. EVIDENCE OF THE HUMAN RIGHTS COMMISSION'S DETERMINATION OF NO PROBABLE CAUSE.

evidence of damage as determined by the trier of fact. SeeStineman v. Fontbonne College, 664 F.2d 1082, 1088 (8th Cir. 1981); United States v. Marin, 651 F.2d 24, 30-31 (1st Cir. 1981); Bail v. Cunningham Bros., Inc., 452 F.2d 182, 187-88 (7th Cir. 1971); Miller v. District of Columbia, 479 A.2d 329, 331 (D.C. 1984); Precopio v. City of Detroit, 415 Mich. 457, 461-64, 330 N.W.2d 802, 804-05 (1982); Loomis v. CivettaCorinno Constr. Corp., 54 N.Y.2d 18, 21-23, 429 N.E.2d 90, 91-92, 444 N.Y.S.2d 571, 572-73 (1981); Ewert v. Anderson, 359 N.W.2d 293, 296-97 (Minn.Ct.App. 1984); Danaher v.Partridge Creek Country Club, 116 Mich. App. 305, 315, 323 N.W.2d 376, 380 (Ct.App.), appeal dismissed, ___ Mich. ___, 325 N.W.2d 2 (1982); Rotello v. Ring Around Products, Inc., 614 S.W.2d 455, 463 (Tex.Civ.App. 1981); Dils v. City ofChicago, 62 Ill. App.3d 474, 480-81, 378 N.E.2d 1130, 1135-36 (App.Ct. 1978); DeCicco v. Trinidad Area Health Ass'n, 40 Colo. App. 63, 64, 573 P.2d 559, 561 (Ct.App. 1977); Whitfield Tank Lines, Inc. v. Navajo Freight Lines, Inc., 90 N.M. 454, 461, 564 P.2d 1336, 1343 (Ct.App.), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977). We perceive no prejudice or injustice in awarding the Langs the damages determined by the jury in the instant case.

Technically, of course, she was entitled to have that claim submitted to the jury. See Whitfield Tank Lines v. Navajo Freight Lines, 90 N.M. App. 454, 458, 564 P.2d 1336, 1340 (1977) (party entitled to instruction on a theory of violation of federal highway safety regulations if pled and supported by evidence). As a practical matter, artfully drafted jury instructions covering the state § 63-3-903(1) claim would be sufficient to cover the claim based on the federal regulations.

Contributory negligence and independent intervening cause are questions for the jury, unless, as a matter of law, there is no evidence upon which to submit the issue to the jury. Stephens v. Dulaney, 78 N.M. 53, 428 P.2d 27 (1967); see Thompson v. Anderman, supra; Whitfield Tank Lines v. Navajo Freight Lines, 90 N.M. 454, 564 P.2d 1336 (Ct.App. 1977); Romero v. Melbourne, 90 N.M. 169, 561 P.2d 31 (Ct.App. 1977); Kelly v. Montoya, 81 N.M. 591, 470 P.2d 563 (Ct.App. 1970). See also Lopez v. Southern Pacific Company, 499 F.2d 767 (10th Cir. 1974).

Because of Maryland's disfavorable treatment of amendments to ad damnum clauses after the verdict, we are not persuaded by appellee's reliance on case law from other jurisdictions. See Loomis v. Civetta Corinno Constr. Corp., 429 N.E.2d 90 (N.Y. 1981); Whitfield Tank Lines, Inc. v. Navajo Freight Lines, Inc., 564 P.2d 1336 (N.M. App.), cert. denied, 567 P.2d 486 (N.M. 1977). The decisions in these cases, that a party is not prejudiced by recovery of damages that exceed the ad damnum clause, do not lead us to the conclusion that the trial court abused its discretion.

{59} Even in the absence of consent, however, the trial court may allow an amendment to conform to the evidence if it feels that the objecting party has not been prejudiced. See id. at 390-91, 785 P.2d at 730-31; see also Rule 1-015(B) ("If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits."); Whitfield Tank Lines, Inc. v. Navajo Freight Lines, Inc., 90 N.M. 454, 461, 564 P.2d 1336, 1343 (Ct.App. 1977) (defendant made no showing of actual prejudice which would justify a denial of plaintiff's motion to amend the complaint to conform to the evidence); Camp v. Bernalillo County Med. Ctr., 96 N.M. 611, 613, 633 P.2d 719, 721 (Ct.App. 1981) (in determining whether the opposing party would be prejudiced if the amendment were allowed, the court looks at various factors such as "whether (the defendant) had a fair opportunity to defend and whether he could offer any additional evidence if the case were to be retried on a different theory."). Because BSA knew of Plaintiff's claims through his discovery requests, pretrial motions, trial brief, and requested jury instructions, we cannot conclude that BSA did not have a fair opportunity to defend.