Archuleta v. Johnston, 683

• Citation: 83 N.M. 380, 492 P.2d 997, 1971 NMCA 158
• Case Date: November 05, 1971
• Court: Court of Appeals of New Mexico

Page 997

492 P.2d 997

83 N.M. 380

Jesus ARCHULETA, Administrator of the Estate of Raymond B.

Romero, Deceased, et al., Plaintiffs-Appellants, v. Allan R. JOHNSTON and Ervin H. Werner,

Defendants-Appellees.

No. 683.

Court of Appeals of New Mexico.

Nov. 5, 1971.

Rehearing Denied Nov. 30, 1971.

Certiorari Denied Dec. 27, 1971.

[83 NM 381] Arturo G. Ortega, William E. Snead, Tapia & Prelo, Albuquerque, for appellant.

LeRoi Farlow, Daniel C. Lill, Albuquerque, for appellee Johnston.

Clarence R. Bass, K. Gill Shaffer, Shaffer, Butt & Bass, Albuquerque, for appellee Werner.

OPINION

COWAN, Judge.

The plaintiffs, as personal representatives of three deceased persons, brought their action against the defendants for wrongful death arising out of an automobile accident occurring on U.S. 64, a two-lane highway, 4.2 miles south of Espanola, New Mexico.

The jury returned a verdict for the defendants and plaintiffs appeal. Plaintiffs assert the trial court erred in denying their several motions for a directed verdict and their motion to set aside the verdict and enter judgment on the issue of liability; in instructing on independent intervening cause; in instructing on the care required of the decedents as passengers; and in excluding the testimony of an economist on the question of damages.

We affirm. MOTIONS FOR DIRECTED VERDICT AND MOTION FOR

JUDGMENT NOTWITHSTANDING THE VERDICT

' In considering a motion for a directed verdict, the trial court must view the evidence in the light most favorable to the party resisting the motion, indulging every reasonable inference in support of the party resisting, ignoring conflicts in evidence unfavorable to him, and if reasonable minds might differ as to the conclusion to be reached, under the evidence or permissible inferneces, the question is for the jury.' Garcia v. Barber's Super Markets, Inc., 81 N.M. 92, 463 P.2d 516 (Ct.App.1969); Brown v. Hall, 80 N.M. 556, 458 P.2d 808 (Ct.App.1969).

'A judgment notwithstanding the verdict is proper only when it can be said that there is neither evidence nor inference from which the jury could have arrived at its verdict. A judgment notwithstanding the verdict is improper if different inferences may reasonably be drawn from the evidence. . . . An inference is a logical deduction from facts proven.' Flanary v. Transport Trucking Stop, 78 N.M. 797, 438 P.2d 637 (Ct.App.1968).

Defendant Johnston was travelling in a northerly direction followed by defendant Werner. Johnston thought Werner was following too closely and alternately slowed down and speeded up, signalling with his hand for defendant Werner to pass. Defendant Werner was uncertain as to whether he should attempt to pass and, shortly before the accident, the two cars were travelling slowly, about a car length or less apart, in the right-hand lane. Jerry E. Gonzales was operating his vehicle in the same direction as the defendants, with plaintiffs' three decedents as passengers. His car, including the brakes, was in good condition. He rounded a curve and had an unobstructed view of the Werner vehicle approximately 1400 feet ahead of him. The maximum stopping distance of a vehicle travelling at 60 miles per hour under road conditions at the time and place of the accident, including driver reaction time, was 246 feet. Gonzales was driving about 60 miles per hour and according to his testimony:

'Well, when I was coming around this turn, I saw this car on the road, which appeared to me like it was moving very slow. I glanced down at the road a little further and noticed another car was coming, so I couldn't pass him. Then, I just stepped on my brake.'

The right rear tire of his car left a skid mark of 97 feet, 4 inches, the other tires somewhat less. The skid marks indicated that the vehicle skidded ahead with a slight curve to the left. The right side of the Gonzales vehicle collided with the left rear of the Werner vehicle and then spun off, crossing the left traffic lane and coming to rest on the left edge of the highway. The three passengers were killed.

Plaintiffs contend that the violations of statutes § 64--18--4 (driving so slow as to impede traffic); § 64--18--49 (stopping on a highway); § 64--18--17(a) (following too closely), N.M.S.A.1953 (Repl.Vol. 9, pt. 2), which were enacted for the benefit of the public, of which decedents were members, constitute negligence as a matter of law. Even if there were violations which would constitute negligence as a matter of law, which we do not decide, there would still be the questions of proximate cause and independent intervening cause. From the foregoing evidence, with its permissible inferences, reasonable minds could differ on these issues. They were proper questions for the jury.

Plaintiffs rely upon Kelly v. Montoya, 81 N.M. 591, 470 P.2d 563 (Ct.App.1970), and Paddock v. Schuelke, 81 N.M. 759, 473 P.2d 373 (Ct.App.1970), in support of their first claim of error. In reversing the action of the trial court in granting a summary judgment, Kelly discussed proximate cause and independent intervening cause, and reaffirmed the law in New Mexico that, if reasonable minds might differ on these issues, they are for the jury. Paddock is distinguishable not only on its facts but because it was concerned with proximate cause only and not with independent intervening cause.

In view of what has been said, the court properly overruled plaintiffs' motions for a directed verdict...