Archuleta v. Jacobs.

• Decision Date: 16 October 1939
• Docket Number: No. 4433.,4433.
• Citation: 43 N.M. 425,94 P.2d 706
• Parties: ARCHULETAv.JACOBS.
• Court: New Mexico Supreme Court

43 N.M. 425

94 P.2d 706

ARCHULETA

v.JACOBS.

No. 4433.

Supreme Court of New Mexico.

Oct. 16, 1939.

Appeal from District Court, Dona Ana County; Numa C. Frenger, Judge.

Action by Anastacio Archuleta, administrator of the estate of Carolina Archuleta, deceased, against L. R. Jacobs for death of intestate resulting when struck by passing automobile after having been discharged from school bus operated by defendant. From an adverse judgment, defendant appeals.

Reversed with instructions.

Evidence of fast and near approach of automobile, which child alighting from school bus might not have seen when she passed around rear of bus and into view to start across highway, when it was too late for her to decide upon what conduct would better conduce to her safety, was sufficient to make alleged negligence of school bus driver an issuable fact for jury.

W. C. Whatley, of Las Cruces, for appellant.

T. B. Rapkoch and J. B. Newell, both of Las Cruces, for appellee.

MABRY, Justice.

The administrator and appellee, hereinafter called plaintiff, sued appellant, hereinafter called defendant, to recover for the alleged wrongful death of one Carolina Archuleta, the seven and one half year old child of the administrator.

The child was killed by a passing car immediately after having been discharged from a school bus operated by defendant under contract with the Dona Ana County Board of Education to transport to and from their “destination” the children attending one of the district schools of the county. The accident occurred when the child was being returned from school and immediately after she had been discharged from the bus and at the place where she had been accustomed to take and leave the conveyance over a period of several weeks and during the time she had been attending the school in question. The discharging zone, or location, was on the west side of the road and directly opposite the child's home. The home stood back from the road some 40 to 50 feet from the highway which ran north and south, and which had a width at the place of some 25 to 30 feet, probably 18 feet of which was surfaced and oiled.

The deceased was struck by this car approaching from the south, after she had left the point of discharge and when she was endeavoring to cross to her home, and immediately after the bus had left the scene.

Judgment was rendered for plaintiff and defendant prosecutes this appeal.

A number of questions are presented, the principal one being that raised upon motion for directed verdict and judgment non obstante veredicto, based upon the ground that plaintiff had not made out a case of negligence against defendant. Defendant disclaims all liability for the injury, and claims that it was caused by the child's own negligence, her contributory negligence, by the negligence of her mother calling to the child while in the highway endeavoring to cross, which act of the mother, he claims should be imputed to the child, or that it resulted from the negligence of a third person, one Lewis, the driver of the north bound car which struck the deceased.

Additional assignments go to the question of improper refusal of requested special findings and of requested instructions, and the giving of improper instructions of the court's own motion. Others point to certain special findings of the jury claimed to be in conflict with the general verdict by showing the injury resulted because of the child's own negligence or through that of another not the defendant.

The driver of the bus was under contract with the County Board to transport the children of the district to and from school. Whether the contract was in writing does not appear, nor are any details showing any specific contractual duties of the bus operator to be found in the evidence. There were no officially posted or marked loading or discharging zones, but all children, including the deceased, were, as a matter of practice and custom, taken on and discharged at certain well known and designated points along the highway. The defendant had at no time been required to discharge nor had he at any time discharged the deceased at any other point than the one used on this occasion.

The question of the alleged negligence arises under circumstances which plaintiff claims imposed upon the driver the duty of exercising that highest degree of care and caution, which he did not observe. The particular circumstances relied upon to establish negligence were that the Lewis car traveling north was near enough to the bus at the time it made its regular stop to discharge the deceased that she should not have been permitted to alight until the car had passed, or that the driver should himself have seen her safely across the highway to her home.

Much stress is placed by plaintiff upon his allegation in the complaint that the proof which he claims supports it, that defendant, after discharging the child upon the highway and while she was going around the bus, and upon the highway, “negligently and carelessly started away from the place where he had stopped without first seeing the child was safely delivered to her destination”, and without warning her of the approaching car which he himself could see. Plaintiff contends that the duties of the driver under these particular circumstances, being held to the highest degree of care, did not cease until his passenger had made her safe departure from the vicinity of the stop.

Defendant by his motions for judgment at the close of plaintiff's case, at the close of the whole case, and thereafter for judgment non obstante veredicto, challenges the evidence as being insufficient to sustain the verdict.

[1] We thus examine the evidence in a light most favorable to plaintiff. Without undertaking here to detail the testimony it may be said that the following is a fair statement of the facts:

The driver of the bus had no contract to see each child safely home but it was his duty under the terms of his employment to safely convey to and discharge his passengers at their respective destinations, at the loading and discharging points along the highway. The question is, what constitutes a “safe discharge” at the destination? There were fixed places along and upon the highway where defendant took on and discharged all the children of the district using the service. The deceased was discharged at the place fixed and where she had at all times theretofore been let out, and the driver, as usual, upon the day in question drove off, or nearly off, the highway, to his right and upon the shoulder of the road and into a place wide enough to permit his car to practically leave the paved portion of the highway before stopping and permitting the child to alight. Although this was upon a heavily traveled transcontinental highway, with a clear view from the point both to the north and the south of about one mile, at the moment of the discharge of deceased there was but little traffic, only one car being in sight, and that being the Lewis car, approaching from the south but quite near and at a distance of perhaps less than 300 feet and traveling at a speed of from 35 to 40 miles per hour and in its regular lane of travel. The child was discharged from the right side of the bus, which was traveling south, and a few feet off the west edge of the 18 foot oiled portion of the highway. Defendant warned the deceased to be careful in crossing the road, but said nothing about the one approaching car. The child was seven and one half years of age, was mentally alert for a child of her years. She was accustomed to avoiding traffic at the point and knew the danger attending a crossing of this much traveled north and south highway. At all times therefore she had been known to exercise reasonable caution in making the crossing to her home. After the child was discharged from the bus, the driver, cutting back upon the highway, started out slowly, going some distance in low or second gear. He passed the Lewis car a few hundred feet down the road, the defendant claims, but evidence of plaintiff shows that the passing might have been about 50 feet from the place of discharge. We must accept the latter distance, though the testimony on that was not so clear and satisfactory. The child was struck by the Lewis car approximately at the point of her crossing, but off the highway some three feet and toward the east and on her home side of the road. The Lewis car had left the main part of the traveled highway, turning off to his right a few feet before reaching the point of collision.

The evidence is not clear whether the child ran into the Lewis car or was run over by it in her attempt to get out of the way. There is conflict here, but it is undisputed that the collision occurred after she had almost, if not entirely, negotiated the crossing.

The bus used was of the ordinary small type, with a measurement of only 11 feet for the bus part proper. The motor was of the ordinary small car type, recently rebuilt and producing only the usual motor noises.

The jury by its answer to certain special interrogatories propounded found, in substance, that the child was mentally capable of knowing and appreciating the dangers attendant upon an attempted crossing of the highway in question, and the evidence as well shows that she was quite mentally alert for a child of her age, and did know and appreciate the dangers there to be avoided since she had constantly faced them each day for some weeks prior. Defendant urges that such evidence and findings, together with answers to certain other special interrogatories which he interprets as fixing the proximate cause of the accident and consequent injury upon the negligence of the child herself or upon that of the said Lewis, the driver of the car approaching from the south, presents questions which must, when correctly determined, absolve defendant of any negligence.

[2][3] It is pointed out by the authorities generally that usually in the case of a...