Bailey v. Jeffries-Eaves, Inc.

• Decision Date: 16 May 1966
• Docket Number: No. 7698,INC,JEFFRIES-EAVE,7698
• Citation: 414 P.2d 503,76 N.M. 278,1966 NMSC 94
• Parties: Eula Mae BAILEY and Barbara Jane Allen, Plaintiffs-Appellees, v., a corporation, Carl Adam Dove, Donald W. Freese and Transport Indemnity Company, an Insurance corporation, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 503

414 P.2d 503

76 N.M. 278

Eula Mae BAILEY and Barbara Jane Allen, Plaintiffs-Appellees, v. JEFFRIES-EAVES, INC., a corporation, Carl Adam Dove, Donald

W. Freese and Transport Indemnity Company, an

Insurance corporation,

Defendants-Appellants.

No. 7698.

Supreme Court of New Mexico.

May 16, 1966.

Sutin & Jones, Albuquerque, Matias A. Zamora, Santa Fe, for appellants.

Patricio S. Sanchez, Santa Fe, for appellees.

CHAVEZ, Justice.

Defendants-appellants appeal from a judgment entered pursuant to a jury verdict in favor of each of plaintiffs-appellees.

On December 3, 1961, between 5:45 and 6:00 p.m., plaintiff Allen was driving her pickup truck in a northerly direction on U.S. Route 85 about a mile south of Santa Fe. Plaintiff Bailey was a passenger in the pickup truck and was riding in the front seat on the right hand side. Defendants are the owner, lessor, driver and insurer of a tractor-trailer unit which had stopped on that same highway. The pickup truck in which plaitniffs were riding ran into the rear of defendants' tractor trailer. Both vehicles were damaged and plaintiffs were injured.

At the point of collision, the highway is a four-lan road, with a barrier running along a median which divides the two north-bound lanes from the two south-bound lanes. Each lane is eleven and one-half feet in width. Both vehicles were headed north.

The road is straight and level for about one-half mile beofre the scene of the accident. The highway was dry, the weather clear, and visibility was unimpaired except for darkness. The speed limit at this point of the road was fifty-five miles per hour.

Near the scene of the accident, there was a cafe truck stop with an unusually bright light in front of it near the highway. In addition, another accident had occurred shortly before this one, in the south-bound lanes, and various vehicles had collected around that accident. Although the testimony is contradictory, all witnesses except one located the tractor trailer within the right-north-bound lane when it was struck by plaintiff's truck.

Defendants contend that the verdict of the jury, finding defendants' driver Dove guilty of negligence and plaintiff Allen free from contributory negligence, is not supported by substantial evidence.

Plaintiffs' cause is based on two acts, either of which could support a finding that defendants were negligent. The first is that defendants negligently blocked the highway and impaired the safety of others; and the second is that defendants failed to warn approaching motorists, such as plaintiffs. The manner prescribed by the legislature for warning approaching vehicles, in a situation such as the present one, is set out in § 64--20--53, N.M.S.A., 1953 Comp.

The evidence is undisputed that defendants' tractor trailer suffered fuel pump failure and could not be moved. The driver's testimony, that he had just pulled onto the highway, was going about seven to ten miles per hour when the motor failed, and that he coasted as far to the right as was possible, was not contradicted.

Only one witness stated that the tractor trailer was not fully within the right-north-bound lane, and he admitted that the tractor trailer did not block the left-hand lane of traffic. Other witnesses testified that cars had passed the stalled tractor trailer in the left-north-bound lane. Inherent in § 64--20--53, supra, is the fact that the mere stopping of a disabled vehicle on the pavement is not negligence; however, once a vehicle is so stopped, it is necessary that the driver comply with the statute, which provides in part:

'Emergency signals; disabled vehicle.--Whenever any motor vehicle is disabled upon the traveled portion of any highway or the shoulder thereof, when lighted lamps are required, except in cities, towns and villages where there is sufficient highway lighting to make it clearly discernible to persons and vehicles on the highway at a distance of 500 feet, the following requirements shall be observed:

'(a) The driver of such vehicle shall immediately place on the traveled portion of the highway at the traffic side of the disabled vehicle, a lighted fusee and a lighted red electric lantern, or a red emergency reflector.

'(b) Except as provided in paragraphs (c) and (d) of this section, as soon thereafter as possible, but in any event within the burning period of the fusee, the driver shall place three (3) liquid-burning flares (pot torches), or three (3) red electric lanterns, or three (3) red emergency reflectors on the traveled portion of the highway in the following order:

'1. One (1) at a distance of approximately 100 feet from the disabled vehicle in the center of the traffic laneoccupied by such vehicle and toward traffic approaching in that lane;

'2. One (1) at a distance of approximately 100 feet in the opposite direction from the disabled vehicle in the center of the traffic lane occupied by such vehicle; and

'3. One (1) at the traffic side of the disabled vehicle, not less than 10 feet to the front or rear thereof. If a red electric lantern or red emergency reflector has been placed on the traffic side of the vehicle in accordance with paragraph (a) of this section, it may be used for this purpose.

'* * *

In New Mexico it is established that violation of this statute, in accidents of the type considered here, is negligence per se. See, Duncan v. Madrid, 44 N.M. 249, 101 P.2d 382; Hisaw v. Hendrix, 54 N.M. 119, 215 P.2d 598, 22 A.L.R.2d 285; and Chandler v. Battenfield, 55 N.M. 361, 233 P.2d 1047.

In considering the question of whether there is substantial proof upon which the verdict was based, we must view the evidence in the light most favorable to the verdict. Minor v. Homestake-Sapin Partners Mine, 69 N.M. 72, 364 P.2d 134; Jimenez v. Shop Rite Foods, Inc., 72 N.M. 184, 382 P.2d 181; Brown v. Pot Creek Logging & Lumber Company, 73 N.M. 178, 386 P.2d 602.

Although the statute requires defendants' driver to place warning devices approximately 100 feet behind the stalled vehicle, the driver's own testimony and depositions indicate possible failure to do so. The driver testified that he placed a reflector among the first four fusees which he put out. His testimony indicates that these fusees extended about 40 feet behind the tractor trailer and were twenty-minute fusees.

No other witnesses placed a reflector close to 100 feet to the rear. The witness Archuleta was indefinite as to distance, and Officer Pickett's testimony concerned a time well after the accident. Considerable testimony was taken concerning fusees, but their presence does not meet the statutory requirement.

Defendants argue that plaintiffs brought their action in common law failure to warn, and that defendants' driver acted as a reasonable person in warning approaching traffic. It is generally held that a statute such as § 64--20--53, supra, is a legislative substitution for the common-law standard of the reasonably prudent man. Lynghaug v. Payte, 247 Minn. 186, 76 N.W.2d 660, 56 A.L.R.2d 1090; Fields v. Missouri Power and Light Company (Mo. 1963), 374 S.W.2d 17. However, the jury may find that, under certain circumstances, the standard of due care requires more than compliance with the minimum standards of a statute. Peterson v. Salt River Project Agricultural Improvement & Power District, 96 Ariz. 1, 391 P.2d 567.

The application of § 64--20--53, supra, was proper, and the jury's consideration of it in relation to other facts in the case was correct.

There is contradictory testimony conderning compliance with the statute of defendants' driver, highlighted by his own indefiniteness. It is well founded in this jurisdiction that a reviewing court will not weight the evidence on appeal. We believe that there is substantial evidence on which the jury in this case found that the defendant driver was negligent.

We next consider the second part of defendants' primary contention: that plaintiff Allen, the driver of the pickup truck which struck the stalled tractor trailer, was guilty of contributory negligence, and that the jury verdict in her favor was not supported by substantial evidence.

Only one witness testified that there were no warning devices on the roadway or on the tractor trailer, other than the reflector which plaintiff Allen struck just before she struck the stalled tractor trailer, and that was plaintiff Allen herself. Among the witnesses at the scene of the collision, one did not recall whether any warning devices existed at the scene, but the other witnesses remembered seeing at least one fusee, and others recalled more than that number. Defendant driver did not testify that he saw any, but claimed that insufficient time had passed for the fusees to expire.

The same is true concerning lights on defendants' tractor trailer. While plaintiffs' witnesses did not remember whether the tractor trailer's lights were illuminated or flashing, none could refute the driver's testimony, or that of one witness, that the lights of the tractor trailer were illuminated at the time of the accident.

Although the lighting situation around the stalled tractor trailer at the time of the accident may not have complied with the applicable statute, it is clear from the evidence that the stalled tractor trailer was not totally dark.

The parties cite several cases decided by this court concerning accidents in which an approaching vehicle struck another vehicle which was stalled on the roadway. We agree with the holding in two of those cases, Williams v. Haas, 52 N.M. 9, 189 P.2d 632, and White v. Montoya, 46 N.M. 241, 126 P.2d 471, that contributory negligence is a question generally for the jury; however, we do not believe that those cases are otherwise applicable.

In Duncan v. Madrid, supra; Olguin v. Thygesen, 47 N.M. 377, 143 P.2d 585; Gutierrez v. Koury, 57 N.M. 741, 263 P.2d 557; and Zanolini v. Ferguson-Steere Motor Co., 58 N.M. 96, 265 P.2d 983, the evidence was clear that the stalled vehicle did not...