Alexander v. Cowart, 5749

• Decision Date: 07 June 1954
• Docket Number: No. 5749,5749
• Citation: 58 N.M. 395,1954 NMSC 60,271 P.2d 1005
• Parties: ALEXANDER v. COWART.
• Court: New Mexico Supreme Court

Page 1005

271 P.2d 1005

58 N.M. 395

ALEXANDER v. COWART.

No. 5749.

Supreme Court of New Mexico.

June 7, 1954.

Rehearing Denied July 7, 1954.

Lynell G. Skarda, Clovis, for appellant.

Quinn & Cox, Clovis, for appellee.

SEYMOUR, Justice.

Plaintiff sued defendant for property damage arising out of a two-vehicle collision some ten miles northwest of Espanola, New Mexico. Complaint was based upon defendant's alleged negligence; defendant denied negligence and plead affirmative defenses of contributory negligence and last clear chance. Trial was had before the court without a jury and resulted in a judgment of $5,556.72, from which judgment defendant appeals.

The six points presented and argued by defendant may be classified generally as follows: (1) The first five points, addressed to defendant's primary negligence, assert error as to findings of fact: (a) That certain of them are not supported by substantial evidence and are contrary to the physical facts; (b) That certain findings of fact requested by defendant were improperly refused. (2) The sixth point is addressed to the negligence of the plaintiff in support of the defenses of contributory negligence and last clear chance; the error here asserted is also directed at findings made or refused by the trial court. Further, appropriate conclusions of law flowing from the allegedly erroneous findings of fact are cited as error together with the refusal of conclusions of law requested by defendant.

Both of the vehicles were going south on U. S. highway 285, an unpaved highway approximately 24-feet wide, having a hard rock and sand surface. The accident happened in midafternoon of a clear, dry day on a level and straight section of the road. Defendant's vehicle, with an over-all length in excess of 70 feet, was comprised of an International tractor towing a low-boy with a Caterpillar tractor on it, in turn towing a carry-all loaded with an A-frame. Defendant was moving heavy contractor's equipment under a special permit and was traveling at approximately 3 mph on his extreme right-hand side of the highway. The A-frame, used as a derrick upright in connection with the tractor, weighed some 2,000 pounds, was approximately 25 feet long, made of heavy 4-inch pipe, and was shaped, as indicated by its name, in the form of an 'A.' The legs at the bottom of the 'A' were about 4 feet apart; the A-frame was lying lengthwise on the carry-all, the last of this string of vehicles, with the top or point of the 'A' lashed down at the front of the carry-all, the legs projecting some 2 feet beyond the rear of defendant's rig. The carry-all had 10-inch steel side-boards, between which the body of the A-frame was riding; however, the body of the A-frame was resting on the tail-gate at the rear of the carry-all; the record does not disclose how many inches the side-boards extended above this tail-gate; the record does show that the A-frame was not lashed down at its rear or where it rested on the tale-gate; that is, it was secured at only its forward end at the head of the carry-all.

Plaintiff's vehicle was a GMC diesel truck pulling a Trailmobile van trailer full of vegetables; the over-all length was approximately 47 feet. The width of plaintiff's vehicle was 7 feet, 7 inches, and the defendant's vehicle at its widest point, the carry-all, was 9 feet, 11 1/4 inches.

Plaintiff's vehicle overtook defendant's rig and followed it for approximately 15 minutes or one quarter of a mile, until there was ample road visibility to insure passage safe from oncoming traffic. Plaintiff then sounded his horn, pulled to the left and attempted to pass, moving at a rate of approximately 5 mph.

As plaintiff attempted to pass defendant, the A-frame caught the diesel exhaust stack of plaintiff's truck, bent it down, and then struck the front right-hand side of plaintiff's refrigerator trailer approximately 12 feet above the ground, and proceeded to rip the skin or side of the trailer from front to rear parallel to the road; the result was as though the trailer had been opened by a giant can opener. Since the sidewalls of this refrigerator trailer were a principal support of the body of the trailer, the whole trailer collapsed on the ground and the vehicles came to a stop within a few seconds.

The significant findings of fact and conclusions of law given by the court and upon which defendant predicates error are as follows:

Findings of Fact:

'10. That the A-Frame on defendant's scraper was clearly visible to plaintiff's driver and was seen by him. That said A-Frame was not seen to be skidding or sliding across the tail gate of the scraper, but just prior to this time a passenger bus driver, L. C. Ward, had been forced to pull of to the side of the road and stop to let defendant's rig go by for the reason that this 'A' frame was hanging over the side of the carryall and out into the road a distance of about four feet (4').'

'13. That as plaintiff's driver attempted to pass in a legal and proper manner the 'A' frame, which in some manner had either skidded on the tail-gate or been thrown by the roughness of the road over the side of the carryall and out into the roadway and caught on the exhaust pipe of plaintiff's tractor, and after bending the exhaust pipe down, caught in the extreme right front round corner of the refrigerated van and ripped the van open from the front almost to the rear.'

'17. That when both vehicles had come to rest, plaintiff's vehicle was on the extreme lefthand side of said roadway and was immovable, and defendant's rig was on the extreme righthand side of the highway and ahead of the plaintiff's rig far enough to allow a car to pass between the two rigs.'

'19. That plaintiff's driver operated plaintiff's vehicle on the public highway in a careful, proper, prudent and legal manner.'

Conclusion of Law:

'2. That the defendant's failure to properly secure the 'A' frame to the carryall was the proximate cause of the damage to plaintiff's rig.'

The trial court's oral opinion at the conclusion of the hearing reflects the theory upon which the case was decided:

'The Court:--The Court finds that some portion of the A-Frame having been so attached to the vehicle which was transporting it that it was able to protrude over into the oncoming lane of traffic for some distance, undoubtedly I would say as much as ten inches, when this accident occurred. I do not know that the flags or lack of flags would be material on that equipment. Persons using the highway with heavy wide equipment and a load of that sort they take up nearly all or half of the highway, and if some part of the cargo shifts or is able to shift and does so as to protrude into the lane of traffic of oncoming vehicles the person permitting such a condition to exist would be liable for any damage caused thereby unless there is some defense; I see none here. There is no doubt that the projection of some part of that A-Frame caused this damage. The testimony of the plaintiff's driver which I think is reasonable as he was going around this other equipment at five miles per hour according to his statement I see no reason to doubt him. Obviously I would think he did not see the equipment projecting. Of course, he might have noticed it and gone beyond it at the time it slipped over far enough to gouge his trailer. He is amply corroborated by the witness Ward, the bus driver, who states in positive terms he saw this same vehicle with the A-Frame projecting into his lane of traffic and pulled over and stopped because of the apparent danger and there was no flags on it. I see nothing in this testimony to indicate that the plaintiff's driver was guilty of any contributory negligence, he had his vehicle under control with due regard to the safety of the road, and nothing has been shown which would indicate any contributory negligence. The judgment will be for the plaintiff in the amounts detailed by him. There will be no award on account of exemplary or punitive damages because there is no proof here justifying such award.'

The first five points argued by appellant, defendant below, assert that there was no substantial evidence to support the court's findings numbered 10, 13 and 17 quoted above, and that these findings were contrary to the physical facts.

A review of the record reveals specific testimony, subject to no objections on the part of the defendant, supporting each of the facts found by the court; for instance: plaintiff's driver and the passenger bus driver, L. C. Ward, a disinterested witness, clearly testified to the facts recited in finding 10; there was no testimony directly attacking Ward's story. As to finding 13, although there was no eye-witness at the monent of the damaging contact, the testimony of Ward comprehended in finding 10, together with undisputed testimony of others to the effect (1) that the A-frame was not lashed down at the rear, (2) that it could be moved around on the tail-gate by the strength of a single individual, (3) that the road was rough and had chuck holes, (4) that the A-frame caused the damage to plaintiff's truck (testimony of defendant's superintendent), constitutes substantial evidence to support such finding. There is similar exact testimony to...