Bass v. Dehner, 1730.

• Decision Date: 01 May 1939
• Docket Number: No. 1730.,1730.
• Citation: 103 F.2d 28
• Parties: BASS v. DEHNER.
• Court: U.S. Court of Appeals — Tenth Circuit

103 F.2d 28 (1939)

BASS v. DEHNER.

No. 1730.

Circuit Court of Appeals, Tenth Circuit.

February 14, 1939.

Rehearing Denied May 1, 1939.

H. A. Kiker, Manuel A. Sanchez, and Anthony J. Albert, all of Santa Fe, N. M., for appellant.

Carl H. Gilbert, of Santa Fe, N. M. (M. W. Hamilton, of Santa Fe, N. M., and William T. Wolvington and Kenneth M. Wormwood, both of Denver, Colo., on the brief), for appellee.

Before LEWIS, PHILLIPS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

This action was commenced by Mrs. Jane Bass, administratrix of the estate of Clarence R. Bass, deceased (intestate), in the District Court of Colfax County, New Mexico, to recover damages from T. P. Detamore, of Denver, Colorado, under the Death by Wrongful Act statute of New Mexico. Comp.St.N.M.1929, § 36-101 et seq.

The parties will be referred to in the order in which they appeared in the trial court.

The action in due course was removed by the defendant to the United States District Court for the District of New Mexico. Thereafter, said Detamore died, and his executrix, Mabel A. Dehner, was substituted as party defendant.

The cause was tried to a jury and a verdict returned in favor of plaintiff assessing her damages at $500, plaintiff filing a motion to have the verdict set aside and a new trial granted on the ground that the award for damages was grossly inadequate. The motion having been granted, the cause was again submitted to a jury, and a verdict on the issues in favor of the defendant was returned. Judgment having been entered thereon, plaintiff prosecuted this appeal.

The complaint is in two counts. The first charged that on December 6, 1936, Clarence R. Bass was driving his Ford coupe along Highway 85 northward near and toward the city of Raton, New Mexico; that the highway at said place was straight and free from obstructions to vision for more than 500 feet in both directions; that he was driving his car close to the right side of said highway; that testate Detamore, traveling in the opposite direction (south) in a Pontiac automobile carelessly, recklessly and negligently drove such automobile to the left of the center of the highway and into and against the left-side of intestate's Ford, causing the car of the said intestate to turn over several times; that as a proximate result thereof intestate was thrown from his automobile and received a fatal brain injury from which he died, damages being prayed for in the amount of $25,000.

The second cause of action as pleaded was identical with the first, but further alleged damages to intestate's Ford in the sum of $500 and for medical attention and hospital bills in the sum of $250.

Defendant in her amended answer denied all material allegations in the first and second counts, and set up a second, third, fourth and fifth defense.

The second and fifth defenses were stricken in their entirety together with a portion of the fourth, leaving the third and fourth defenses identical in substance. The third defense alleged that just prior to and continuing up to the time of the collision between the two automobiles, Clarence R. Bass was driving and operating his automobile in a northerly direction along said highway at a high, dangerous, reckless and negligent rate of speed, greatly in excess of such speed as was consistent with safety and proper use of said highway, and that such negligence contributed to and was a contributing cause of the collision, and contributed to and was a contributing cause of the death of Clarence R. Bass and the damages caused to his automobile.

The evidence material and pertinent to the issues presented is substantially as follows:

By T. Martinez that about 2:15 P. M. December 6, 1936, he was on the east side of the junk yard of J. Redosovich near Raton and saw two cars wrecked in front of said yard which is on the west side of the highway running north and south to and from Raton; that a Pontiac car was traveling south and a Ford coupe north, the two cars coming together on the east side of the highway, a little bit north of the driveway that leads out from the garage, the driveway leading into the road from the junk yard. The Pontiac car struck the Ford car on the left back wheel. When the Ford car was struck by the Pontiac, the Ford went off the road, then gave a turn and went on the road again and commenced to roll over and over, the Ford rolling over about five times and laid on one side when it stopped. The engine of the Ford when it stopped rolling was to the northwest, and the car's rear end to the southeast. When the car stopped on its side part was on the road and the remainder off the pavement. When the car rolled over the first time it cracked open, and on the second turn it left its driver lying in the road. After the Pontiac hit the Ford, the Pontiac turned near the pavement, went to the other side, and when it straightened up, stopped, the Pontiac going over to the east side, then turned to the southwest to the end or edge of the pavement. The Pontiac car stopped just a little outside of the pavement after the two cars collided and Dr. Bass went out of the Ford car. I went down to where he was. I had known him since 1906. Doctor Bass was taken away from the scene of the accident in a truck. I helped to move the Bass car off the highway and then went up to where the Pontiac car was and talked to the man in charge of that car. He took my name and address. No one representing the defendant in this case ever talked to me about the case after that day. The road leads north to Raton. A road leads out of the junk yard to the highway. About the time I went to the Pontiac or after I had been there, I looked around the east side of the road where the collision occurred and saw where the Pontiac struck the Ford and threw it out of the road and that it dragged the wheels and made a mark and pushed the gravel a little. Where the Ford car came back on the pavement it made a mark on the pavement and the mark was about three feet before it started to go into the pavement. The track in the borrow pit or ditch was a curved line. When the cars struck I was in the driveway between the garage and the little house. I was about 15 feet from the west of the little house. The garage building is west of the little house.

By D. Smith that on the afternoon of December 6, 1936, he and C. Coplin were standing on the roadway about a mile out of Raton, to hitchhike their way to California, being between the Rainbow View Camp and the junk yard; that he saw a collision between a Ford and a Pontiac, the collision happening well over on the east side of the road; that the Ford swerved into the borrow pit on the east side of the road, came back out and rolled over and over. (The east side of the road was the right side of the road to Doctor Bass who was traveling north, and the left side of the road to Detamore who was traveling south, said west side being the right side of the road to Detamore in traveling south.)

By C. Coplin, who was with Smith, that the Pontiac, going south, passed them about halfway between the Rainbow View Camp and the junk yard, and that he flagged it, but it did not stop; that a little later he saw the Ford coming north over the top of the hill and the two cars come together well over on the east side of the center line of the highway; that after the cars collided the Ford went down into the borrow pit, came up on a sharp angle and start rolling on the pavement; that they went to the Ford car and saw a man lying on the pavement and heard some one call him Doctor Bass.

On cross-examination he stated that when the Pontiac passed him it was traveling close to the middle of the highway; that when he flagged it, it naturally pulled out a little, and he did not see it get over on the left side of the road up to the time of the collision.

He also stated that the Bass car must have rolled about 600 feet before it came to a stop.

By O. A. Lamborn, a surveyor, that he made a plat of the road and the general topography of the country; that the road is an oiled mat of surface road; that the pavement is 20 feet wide with 3-foot gravel shoulders on each side; that the distance from the top of the hill south of the junk yard to the driveway leading into the junk yard is 1,781 feet, and the distance from the junk yard to the Rainbow View Camp is 1,100 feet, and that there is a clear view all the way; that the grade is approximately 4.2 per cent, which levels out to a .7 inch fall per hundred feet for a way and then to a 1.25 per cent grade on by the Rainbow View Camp.

Other witnesses were produced, who had not seen the actual collision, to corroborate the testimony of plaintiff's witnesses.

By John Musilli, for defendant, that he saw a wreck in the vicinity of the junk yard on the afternoon of December 6, 1936, and at time the cars collided he was about 15 or 20 feet from the junk yard; that he heard the Ford, making a lot of noise, coming over the hill, and that he would judge that it was going from 70 to 75 miles an hour; that when he first saw it it was in the middle of the highway, coming very rapidly; that it seemed as though it went off the road into the ditch, came back on the road, and swerved, and about that time hit the Pontiac; that the hind wheel might have been caught in the rainwater there, and then "it went on the road in a very sharp turn, went into the Detamore, the car skidded about sixty feet up the road and rolled over five times down the road; it might have gotten into a rut made by the rain water. Before the car turned sharply to the left, and ran into the Detamore car, the outside wheels of the Bass car were off the oiled pavement." That it looked like it made a bad jump and when it got back on the road it sort of swung around and hit the Detamore car's side of the road, a sort of a glancing blow, then went off the road to the right into the borrow pit, came back out of the borrow pit on to the highway and started to...