Bendorf v. Volkswagenwerk Aktiengeselischaft

• Citation: 1977 NMCA 38,90 N.M. 414,564 P.2d 619
• Decision Date: 05 April 1977
• Docket Number: No. 2648,2648
• Parties: Dwaine BENDORF, Plaintiff-Appellant, v. VOLKSWAGENWERK AKTIENGESELISCHAFT, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 619

564 P.2d 619

90 N.M. 414

Dwaine BENDORF, Plaintiff-Appellant, v. VOLKSWAGENWERK AKTIENGESELISCHAFT, Defendant-Appellee.

No. 2648.

Court of Appeals of New Mexico.

April 5, 1977.

Certiorari Denied May 11, 1977.

Lorenzo A. Chavez, James H. Foley, Albuquerque, for plaintiff-appellant

Eugene E. Klecan, James T. Roach, Klecan & Roach, Albuquerque, for defendant-appellee.

OPINION

HENDLEY, Judge.

Plaintiff appeals an adverse verdict after retrial. See Bendorf v. Volkswagenwerk Aktiengeselischaft, 88 N.M. 355, 540 P.2d 835 (Ct.App.1975) (Bendorf I). Plaintiff claims the accident was caused by a defective seat track mechanism made by defendant. Defendant claims the seat track mechanism was not defective and even if defective it was plaintiff's wrongful driving which caused the accident or plaintiff assumed the risk of the defect because he knew of the defect. The facts are basically set forth in Bendorf I.

Plaintiff's points for reversal on appeal are: (1) the jury was erroneously instructed that ordinary contributory negligence is a complete defense; (2) the jury was erroneously instructed on ordinary contributory negligence; (3) the trial court's conduct deprived plaintiff of his day in court; (4) the trial court erred in refusing to allow defendant's expert witness to be examined as to his compensation; (5) the trial court erred in admitting testimony of how the seat track mechanism operated after the accident; and (6) the trial court erred in refusing to admit prior consistent statements of plaintiff.

Contributory Negligence

Before reaching plaintiff's two arguments concerning the jury instructions we feel it advisable to briefly discuss our decision in Bendorf I. In that case we said that: '* * * the jury was incorrectly instructed that plaintiff's negligent driving was contributory negligence, an affirmative defense, and, therefore, that a finding that plaintiff drove negligently required a verdict for the defendant regardless of its findings as to proximate cause. * * *' Bendorf I. The jury was also instructed that contributory negligence is '* * * negligence on the part of plaintiff that proximately contributed to cause his damages.' Bendorf I. We stated that the affirmative defense of assumption of the risk and misuse were not involved in the case and that '* * * defendant's defense should only have prevailed if plaintiff's negligent driving had caused the accident. * * *' Bendorf I. The error, therefore, was that the instruction required a verdict for the defendant if the jury believed that plaintiff's wrongful driving and the defective seat were concurring causes of the accident. Our decision implicitly adopted the view that '* * * if a product is defective, if the plaintiff is unaware of that defect, and if that defect is the proximate cause of the plaintiff's (accident), then the fact the plaintiff's negligent conduct may have concurred with the defect to cause * * * (the accident) should have no bearing on the validity of the initial policies calling for the application of strict liability. * * *' Bachner v. Pearson, 479 P.2d 319 (Alaska 1970). Accord, Findlay v. Copeland Lumber Company, 265 Or. 300, 509 P.2d 28 (1973). The result being that the jury should not have been required to find for the defendant unless they found that plaintiff's wrongful driving was the sole proximate cause of the accident. See Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okl.1976).

In the present appeal, the trial court's instruction No. 1 read as follows:

'The Plaintiff claims that he sustained damages and that the proximate cause thereof was one or more of the following acts:

'That in designing, constructing and assembling the 1964 Volkswagen, it was so designed, constructed and assembled that the front seat, when used by the driver in the usual type of traffic, would move interferring with the safe operation of the vehicle;

'That on the 17th day of February, 1969, the Plaintiff was driving a 1964 Volkswagen in a northerly direction on San Mateo N.E., and as he was driving across I--40, traffic conditions made it necessary for him to apply the brakes as would be expected under the then existing conditions and as he did so, the seat moved, causing Plaintiff to lose control of his car, run a red light and collide with another car, which resulted in injuries which have left him paralyzed.

'The Plaintiff has the burden of proving that he sustained damages and that one or more of the claimed acts was a proximate cause thereof.

'A. The Defendant denies all the Plaintiff's claims and asserts that the accident was not caused by a defect in the seat assembly of his automobile, if any such defect existed, but was caused by one or more of the following acts of wrongful driving conduct on the part of the Plaintiff:

'1. That the Plaintiff failed to keep a proper lookout for the traffic signals and approaching vehicles and that said failure was the proximate cause of the alleged accident and resulting injuries.

'2. That the Plaintiff failed to yield the right of way at the intersection to the Mustang driven by Mr. Torrez and that said failure was the proximate cause of the alleged accident and resulting injuries.

'3. That the Plaintiff failed to stop in obedience to the traffic signals which were operating at the intersection and that said failure was the proximate cause of the alleged accident and resulting injuries.

'4. That the Plaintiff failed to keep his car under proper control as he approached the intersection when he knew there were traffic signals in operation and that said failure was the proximate cause of the alleged accident and resulting injuries.

'5. That the Plaintiff failed to exercise ordinary care for his own safety and that such failure was the proximate cause of the alleged accident and resulting injuries.

'B. That Defendant further asserts the following affirmative defense:

'1. That Plaintiff was contributorily negligent in that Plaintiff discovered any defect of which he complains but nevertheless unreasonably used the product and assumed the risk while he knew of the defect and danger and that such contributory negligence by the Plaintiff was a proximate cause of the alleged accident and resulting injuries.

'The Defendant has the burden of proving the affirmative defense and that said defense was a proximate cause of the alleged accident and resulting injuries.

'If Defendant's assertions of wrongful driving conduct by Plaintiff as stated above in A--1, 2, 3, 4 or 5 did occur, but were proximately caused by a defect in the product, that is, the seat assembly of the VW, then the said alleged acts of wrongful driving conduct would not be the proximate cause of the accident and therefore would not bar a recovery. (Emphasis ours).

'If you find that Plaintiff has proved those claims required of him, including proximate causation, then your verdict should be for the Plaintiff.

'If on the other hand, you find that any one of the claims required to be proved by the Plaintiff has not been proved, including proximate causation, or that any one of Defendant's assertions of wrongful driving has been proved, and that such was the proximate cause of the accident, or, if you find that Defendant's affirmative defense has been proved and that such was a proximate cause of the accident, then your verdict should be for the Defendant.'

The jury here was not specifically instructed as in Bendorf I, that plaintiff's wrongful driving was contributory negligence, an affirmative defense. Plaintiff objected to the above quoted instruction stating that '* * * it instructs the jury that if the plaintiff's behavior was the proximate cause, they cannot recover. * * *' The jury was also given several instructions on plaintiff's duty to use ordinary care. Plaintiff claims these instructions erroneously injected the issue of contributory negligence into the case.

Assuming, without deciding, that plaintiff is correct in his assertions we find that reversal of this case is not required. The jury was told in instruction No. 1 that if plaintiff's wrongful driving was the proximate cause of the accident then their verdict should be for the defendant. The definition of proximate cause given to the jury states: '(t)he proximate cause * * * need not be the only cause, nor the last nor the nearest cause. It is sufficient if it occurs with some other cause * * *' No other instruction on proximate cause was given. It is clear that by applying the proximate cause instruction given to instruction No. 1 the jury would have been required to find for the defendant even if they found that plaintiff's wrongful driving and the defective seat were concurring causes of the accident.

However, instruction No. 1 was not erroneous. The proximate cause instruction was erroneous because it allowed the jury to elevate plaintiff's wrongful driving to contributory negligence as an affirmative defense and clearly was an inappropriate instruction in this case. Bendorf I.

The proximate cause instruction was not only unobjected to by the plaintiff but it had been requested by the plaintiff. It thus became the law of the case. Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (Ct.App.1973); rev. on other grounds, 86 N.M. 141, 520 P.2d 869 (1974); Griego v. Conwell, 54 N.M. 287, 222 P.2d 606 (1950); Marchant v. McDonald, 37 N.M. 171, 20 P.2d 276 (1933). Plaintiff cannot now complain of the contributory negligence aspect of this case when he requested the erroneous instruction which was given to the jury. Territory v. Yarberry, 2 N.M. 391 (Gild.1883); See Cochran v. Gordon, 77 N.M. 358, 423 P.2d 43 (1967); Platero v. Jones, 83 N.M. 261, 490 P.2d 1234 (Ct.App.1971).

Trial Court's Conduct

Plaintiff contends that certain comments by the trial court were so prejudicial that he was denied a fair and impartial trial. The passages cited by the plaintiff do show that some rather severe comments were directed towards plaintiff's counsel. As to the propriety of...