Aragon v. Speelman
| Citation | 1971 NMCA 161,491 P.2d 173,83 N.M. 285 |
| Decision Date | 12 November 1971 |
| Docket Number | No. 633,633 |
| Parties | Joe ARAGON, Administrator of the Estate of Joseph T. Aragon, a minor, Deceased, Plaintiff-Appellee, v. Roelof SPEELMAN and Rose Speelman, Defendants-Appellants, Mrs. Joe Aragon, Plaintiff in Intervention-Appellant. |
| Court | Court of Appeals of New Mexico |
Plaintiff brought suit to recover damages for a wrongful death. The jury returned a verdict for plaintiff. Defendants filed a motion for judgment NOV, or in the alternative for a new trial. The motion was denied and defendants appeal raising four points for reversal; contributory negligence, erroneous instructions, assumption or risk and proximate cause. Plaintiff cross-appeals on the dismissal of a complaint in intervention by decedent's mother for damages for bystander recovery. We reverse and grant defendants a new trial but affirm the trial court's dismissal of the complaint in intervention. Our reversal involves two issues--instructions on change of lane and sudden emergency. Because of this reversal we do not discuss other issues raised by defendants. However, we are of the opinion that on the present record any contributory negligence of decedent as the proximate cause of the accident was a jury question, the trial court did not err in refusing to instruct on assumption of risk and the issues of defendants' negligence and proximate cause were for the jury.
In viewing the evidence and all reasonable inferences that flow therefrom in the light most favorable to the plaintiff and to support the verdict the record discloses the following. See Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967).
State Highway 47 runs generally north and south in front of the home in which plaintiff-decedent resided. Approximately twenty seconds before the accident occurred plaintiff-decedent was observed by his mother riding his bicycle in a northerly direction on Highway 47 towards the double yellow line which divided the east from the west half of the four-lane highway. Between that time when the decedent's mother saw and spoke to her son and the time of impact her son had ridden his bicycle from the east half to the west half of the highway and was proceeding in a general southerly direction in the outside southbound lane. The defendant-driver was proceeding in a southerly direction in the outside lane of the highway and approximately two-tenths of a mile before the point of impact observed the decedent in the same lane. Defendant-driver changed to the inside lane some two or three hundred yards prior to the point of impact. Decedent had his back to defendant-driver and was pedalling his bicycle in the western-most lane of the highway and had no knowledge that defendant's automobile was approaching from behind. The defendant-driver did not sound her horn to alert the bicyclist of her approach. The speed limit in the area was 50 miles an hour and the defendant-driver testified she may have stated to the State Policeman investigating the accident that she was travelling 60 miles per hour but was travelling 50 miles per hour at the impact. Immediately after the accident the defendant-driver told the investigating policeman she did not know which lane the boy was in. She just saw him and swerved and hit the brakes and eventually came to rest near the east side of the highway.
A passenger in the automobile stated she first observed the decedent moving in a generally west-to-east direction in the path of defendant-driver's automobile which was in the outside lane; that this observation was about two-tenths of a mile before the impact; that as the automobile continued in the southerly direction plaintiff-decedent had moved from a point on the west side of the western-most southbound lane to just short of the middle of the two southbound lanes; and that decedent was at the white stripe which divides the two southbound lanes and was travelling in a south-easterly direction on the bicycle in the middle of the highway just before impact.
The investigating State Police officer testified that the left skid mark of defendant's automobile was 194 feet and that the right skid mark was 62 feet; that this was caused by an abrupt swerving and application of the brakes; that the place of impact was in the inside southbound lane as shown by a 'gouge' mark 2 feet in from the yellow double dividing line; that the impact was probably just prior to the 'gouge' marks; that after the impact the bicycle wound up in the inside southbound lane; that the impact to the bicycle appeared to begin as a glancing blow to the rear wheel with the primary impact in front of the seat, making a 'V' out of the bicycle; that the impact appeared to have been on the left side of the bicycle; and that the point of impact on the defendant's automobile was on the right front corner and headlight with damage there and to the hood and windshield.
CHANGE OF LANE.
Plaintiff submitted, and the trial court gave, an instruction which stated:
'No. 16--There was in force in the state at the time of the occurrence in question a certain statute 64--18--16 (N.M.S.A. 1953 (Repl. Vol. 1960)) which provided in part that:
"Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:
'(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety; * * *'
'If you find from the evidence that the defendant conducted herself in violation of this statute you are instructed that such conduct constituted negligence as a matter of law.'
Defendant objected on the grounds:
'* * * that there is no evidence that the defendants' vehicle moved from one lane to another at anywhere close to where the accident occurred and that the instruction therefore has no applicability to this case and prejudices the defendants' action.'
We agree.
As stated in Garcia v. Barber's Super Markets, Inc., 81 N.M. 92, 463 P.2d 516 (Ct.App.1969):
* * *' (Citations omitted).
We fail to find anywhere in the record any evidence or any inference which would lead to a conclusion that defendant was proceeding in violation of the statute at the time of the change of lane. At the time of the change of lane by defendant-driver the record shows that the defendant-driver was approximately two to three hundred yards from the decedent and that decedent was in the outside lane and that the inside lane was unobstructed. Further,...
To continue reading
Request your trial
-
Amodio v. Cunningham
...& Marine Ins. Co., 371 So.2d 843 (La.App.), writ denied, 374 So.2d 658; Resavage v. Davies, 199 Md. 479, 86 A.2d 879; Aragon v. Speelman, 83 N.M. 285, 491 P.2d 173; Whetham v. Bismarck Hospital, 197 N.W.2d 678 (N.D.); Van Hoy v. Oklahoma Coca-Cola Bottling Co., 205 Okl. 135, 235 P.2d 948; G......
-
Dunleavy v. Miller
...instruction was error since it was based solely on conjecture. Id. at 531, 543 P.2d at 824. Similarly, in Aragon v. Speelman, 83 N.M. 285, 491 P.2d 173 (Ct.App.1971), there was no evidence that a bicyclist struck and killed by a car had been startled by the car and either created or reacted......
-
Wilson v. Wylie
...crossed the southernmost lanes ofMenaul. A bicyclist is in the same duty category as other vehicular traffic. Aragon v. Speelman, 83 N.M. 285, 288, 491 P.2d 173 (Ct.App.1971). The issue is: Does the fact that the accident occurred in the southeast quadrant of the intersection evidence negli......
-
Ramirez v. Armstrong
...existed and the Court of Appeals did not consider the issue of bystander recovery. Id. at 372, 630 P.2d at 771. In Aragon v. Speelman, 83 N.M. 285, 491 P.2d 173 (Ct.App.1971) suit was brought by the mother of a boy who had heard defendant's automobile strike her son, and had turned to see t......