Baros v. Kazmierczwk
| Decision Date | 02 May 1961 |
| Docket Number | No. 6731,6731 |
| Citation | 1961 NMSC 55,362 P.2d 798,68 N.M. 421 |
| Parties | Francisco A. BAROS, Plaintiff-Appellee, v. Charles J. KAZMIERCZWK, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Gilbert, White & Gilbert, Sumner S. Koch, Santa Fe, for appellant.
Lorenzo A. Chavez, Arturo G. Ortega, Melvin L. Robins, Albuquerque, for appellee.
This is an appeal from a judgment entered on a jury verdict in favor of plaintiff and against defendant, after trial of a suit growing out of a head-on collision between a car being driven by plaintiff's brother, Benjamin Baros, and in which plaintiff was a passenger, and one being driven by defendant. Plaintiff received injuries, the most serious of which was a compound comminuted fracture of the left femur at a point just above the knee. This required him to remain in bed in the hospital with the leg in traction for six weeks, after which the leg was placed in a cast where it remained for about a month after which he received physical therapy. He has a residual limitation of motion in the knee and experiences difficulty in running, going up and down stairs and walking on uneven ground. At the time of trial plaintiff's left thigh had a marked atrophy of at least three inches in circumference. The injury to the knee is such that development of arthritis is to be expected which could be treated conservatively at first, but would be likely to progress into such a painful condition as to require fusing of the knee joint by surgery.
Plaintiff was 27 years old at the time of the accident, a laborer who had earned $1 per hour when he worked at landscaping, truck driving, street cleaning, or at odd jobs. He would receive $40 when he worked a full week. At the time of the accident he had been working a few days, helping a friend make adobes for which he was to be paid $60 per thousand.
The accident happened about 8:30 in the evening on May 30, 1958. Plaintiff was sitting in the front seat of his brother's car, on the right side. The brother was driving and they were on their way from their home, a few miles north of the place of the accident, to Espanola. They proceeded along U. S. Highway 64, 285 to a point where these roads meet U. S. Highway 84, which leads off to the right toward Espanola. At that point the highway is divided so that traffic proceeding toward Santa Fe goes to the right of an island and between it and a second island and continues on toward Santa Fe, and traffic for Espanola continues to the right past the second island. Traffic from Espanola toward Santa Fe passes on the opposite side of this second island. It is intended that traffic proceed only in one direction around the islands. There was no sign indicating it was 'one-way,' but there was a small sign about the size of a 'Keep Off the Grass' sign on the end of the island closest to Espanola indicating that the road to Santa Fe was to the right side of the island.
Defendant had arrived in Santa Fe some three months before, and on the day in question had been out in his car by himself seeing the sights. He had spent the afternoon sightseeing north of the place of the accident, and because of the heat, had partaken of four beers. He proceeded toward Santa Fe, but at the intersection or 'Y' described above made a mistake and instead of passing between the two islands on the road to Santa Fe, he stayed on the right side of the second island and found himself on the road into Espanola. When he realized this, he proceeded across the bridge looking for a place to turn around, and upon finding such a place did turn and retraced his steps. When he arrived again at the island, he again became confused, and realized too late that he should pass to the right of the island. He tried to turn into the right lane, but his wheels struck the curb on the island, whereupon he lost control of the car. The steering wheel was pulled from his hands, the car climbed the curb onto the island and veered to the left. It traveled across the gravelled surface of the island a distance of 126 feet, 3 inches, and then went into the roadway leading from the north toward Espanola, being the same roadway defendant had traveled through error a few moments previously. The car traveled an additional 45 feet in this roadway before it collided head-on with the car in which plaintiff was riding. Defendant was knocked unconscious by the impact and plaintiff was injured in the manner already described.
The verdict of the jury was for plaintiff in the amount of $32,000. However, upon consideration of a motion for a new trial or judgment non obstante veredicto, the court determined that a new trial should be granted unless a remittitur of $10,000 was agreed to. This was done, and a judgment was entered for $22,000.
The matters complained of by defendant and advanced as requiring reversal, have to do with the conduct of the trial.
His point I asserts that it was error for the court to have refused the instruction on unavoidable accident tendered by defendant, and to have given an instruction concerning duties when driving on a 'divided' highway.
The contentions made are that defendant was surprised and confused upon arriving at the end of the island by the fact that there was no sign saying, 'Do Not Enter' or a proper directional sign, and further by the fact that the roadway to the left of the island was wide enough for two-way traffic. It is his contention that this brings him within the language of Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028, 1032, where we said:
The very language quoted does not support defendant's position. The presence of an island dividing traffic to right and left in a roadway traveled moments before when proceeding in the opposite direction is a far cry from a pedestrian suddenly appearing in the path of a car. We are unable to follow defendant's argument that he was so surprised by the sudden appearance and unanticipated presence of the island and divided roadway as to make what followed an unavoidable accident. While disavowing any intention of announcing a rule that highway conditions may not under certain circumstances present situations which might give rise to such surprise and bewilderment as to make a resulting accident unavoidable, we do not find them present under the facts of this case.
We note the specially concurring opinion of Justice McGhee in the case of Jontz v. Alderete, 64 N.M. 163, 326 P.2d 95. That was a case of an intersection collision where the court had found that there was no negligence on the part of either driver and that the accident was unavoidable. While two judges determined on appeal that the case should be remanded for a new trial because the trial court had not made sufficient findings of fact to support his conclusions, Justice McGhee concurred specially in the reversal because in his view of the case the record clearly showed there must have been negligence on the part of one or both of the drivers and accordingly the accident could not have been unavoidable. In the instant case, we are clear that reasonable minds cannot differ that defendant was negligent under all the facts proved in the case. It would have been error to have instructed on unavoidable accident. Pitner v. Loya, 67 N.M. 1, 350 P.2d 230.
Under this point defendant also objects to the court's instruction to the jury that Sec. 64-18-18, N.M.S.A.1953, requiring driving to the right of physical barriers or intervening space provided for that purpose on divided highways and prohibiting driving over such barriers and intervening space, was applicable and that if they found that defendant had violated the statute and such action was the proximate cause of plaintiff's injury, then defendant was liable. The objection stated to the court was that the jury should be permitted to determine if the highway was a divided highway covered by the statute. The argument here is to the effect that it is not such a divided highway. Defendant cites no authority in support of his position, but aside from this, under the rule for preserving error in instructions for review in this court as expressed in State v. Compton, discussed at length infra, we decline to pass on this portion of point I.
Defendant's point II is addressed to claimed error in the court's giving of its instruction No. 2 which reads as follows:
The second sentence of the instruction was objected to at the time of trial because it was assertedly an 'incorrect statement' and further since the defense of contributory negligence had been ruled out by the court it was claimed that there was 'no issue on which there is any burden of proof upon the defendant,' and the portion of the instruction...
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