Bolen v. Rio Rancho Estates, Inc.

• Decision Date: 06 March 1970
• Docket Number: No. 431,431
• Citation: 466 P.2d 873,1970 NMCA 31,81 N.M. 307
• Parties: Emorie L. BOLEN, Administrator of the Estate of Elaine Gal Bolen, Deceased, and Emorie L. Bolen, Individually, Plaintiff-Appellant, v. RIO RANCHO ESTATES, INC., J. E. Drum and Boyd Martin, Defendants-Appellees. Emorie L. BOLEN, Administrator of the Estate of Elaine Gai Bolen, Deceased, and Emorie L. Bolen, Individually, Plaintiff-Appellant, v. Frank SHOFFNER, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 873

466 P.2d 873

81 N.M. 307

Emorie L. BOLEN, Administrator of the Estate of Elaine Gal

Bolen, Deceased, and Emorie L. Bolen, Individually, Plaintiff-Appellant, v. RIO RANCHO ESTATES, INC., J. E. Drum and Boyd Martin,

Defendants-Appellees.

Emorie L. BOLEN, Administrator of the Estate of Elaine Gai

Bolen, Deceased, and Emorie L. Bolen, Individually, Plaintiff-Appellant, v. Frank SHOFFNER, Defendant-Appellee.

No. 431.

Court of Appeals of New Mexico.

March 6, 1970.

[81 NM 307] Melvin L. Robins, Lorenzo A. Chavez, Albuquerque, for appellant.

Mary C. Walters, Thoulouse, Moore & Walters, Albuquerque, for appellee drum

James T. Paulantis, Iden & Johnson, Albuquerque, for appellee Rio Rancho Estates, Inc.

Robert G. McCorkle, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque for appellee Shoffner.

Edward Colby, Albuquerque, for appellee Martin.

OPINION

WOOD, Judge.

Elaine Bolen died from injuries suffered in an intersection collision. Plaintiff sued the builder of a fence located near the intersection, the owner of the property on which the fence was built, the developer of the land in the area of the intersection and the driver of the vehicle with which Elaine collided. From judgments in favor of each of the defendants, plaintiff appeals. We discuss: (1) the physical facts rule; (2) harmless error in exclusion of evidence; (3) directed verdict; (4) contributory negligence of the parent; and (5) damages for pain and suffering between injury and death. We reverse the judgment in favor of the driver of the adverse vehicle. We affirm as to the other defendants.

Physical facts rule.

The accident occurred at the intersection of 19th and Grande Streets in Rio Rancho Estates in Sandoval County. Elaine, driving a motorcycle, traveled east on 19th Street. Martin, driving a pickup truck, traveled south on Grande Street.

Defendant Drum owned the house located at the northwest corner of the intersection. He caused a four foot solid wooden fence to be erected on his property line along 19th and a portion of Grande Streets. Defendant Shoffner built this fence.

Plaintiff alleged both Drum and Shoffner knew or should have known that the fence would constitute a visual obstruction to vehicular traffic and failed to reduce the height of the fence in view of this knowledge. The specific claim of negligence as to both of these defendants is that the fence obstructed Elaine's view of traffic proceeding south on Grande as she approached the intersection on 19th Street.

The trial court directed a verdict for Shoffner at the close of plaintiff's case. Plaintiff challenges this ruling. Plaintiff claims the trial court erroneously excluded testimony: (a) concerning an Albuquerque ordinance limiting the height of fences in residential areas to three feet and (b) the reasons for this limitation. The jury returned a verdict for Drum. Plaintiff attacks this verdict because of asserted error in the instructions. Drum, by cross-appeal, contends the trial court should have granted his motion for a directed verdict.

The judgments entered in favor of Shoffner and Drum are to be sustained. Even if the trial court should have admitted testimony concerning the Albuquerque ordinance, Shoffner was entitled to a directed verdict. Even if the instructions were in error as to plaintiff's claim against Drum, the case against Drum should not have been submitted to the jury. Drum was entitled to a directed verdict. These results are reached under the physical facts rule.

There are numerous New Mexico cases discussing the physical facts rule. In most of them, application of the rule has been denied. State ex rel. Los Lunas Hospital, etc. v. Montgomery, 78 N.M. 266, 430 P.2d 763 (1967); International Service Ins. Co. v. Ortiz, 75 N.M. 404, 405 P.2d 408 (1965); Massey v. Beacon Supply Company, 70 N.M. 149, 371 P.2d 798 (1962); Rascoe v. Town of Farmington, 62 N.M. 51, 304 P.2d 575 (1956); Alexander v. Cowart, 58 N.M. 395, 271 P.2d 1005 (1954); Johnson v. Mercantile Ins. Co. of America, 47 N.M. 47, 133 P.2d 708 (1943); Crocker v. Johnston, 43 N.M. 469, 95 P.2d 214 (1939); Larsen v. Bliss, 43 N.M. 265, 91 P.2d 811 (1939).

Ortega v. Koury, 55 N.M. 142, 227 P.2d 941 (1951) states the rule.

'Physical facts and conditions may point so unerringly to the truth as to leave no room for a contrary conclusion based on reason or common sense, and under such circumstances the physical facts are not affected by sworn testimony which in mere words conflicts with them. When the surrounding facts and circumstances make the story of a witness incredible, or when the testimony is inherently improbable, such evidence is not substantial. * * *'

The cases denying application of the rule have usually done so either because the physical facts were not established, see Larsen v. Bliss, supra; or because the established physical facts were such that conflicting oral testimony was not inherently improbable, see Crocker v. Johnston, supra. The rule will not be applied if the physical facts show only that the oral testimony is improbable. Alexander v. Cowart, supra. For its application, the physical facts must be such that conflicting oral testimony is inherently improbable. State ex rel. Los Lunas Hospital, etc. v. Montgomery, supra.

The rule was applied in Bolt v. Davis, 70 N.M. 449, 374 P.2d 648 (1962). There the undisputed physical facts showed the bus to be on the extreme right-hand edge of its own lane of traffic. In Ortega v. Koury, supra, a photograph demonstrated there was no obstruction which prevented the defendant from seeing the child.

Here, the owner of the motorcycle being used by Elaine testified that while riding east on 19th Street, sitting up on the motorcycle, he could see over the fence until he came to a 'yield' sign, that at the sign and 'closer' to the intersection he could not see over the fence unless he raised up three or four inches. He testified that he was 5 feet 9 inches tall at the time of the accident, and that Elaine was quite a bit smaller.

Photographs show that at a height four feet above the eastbound lane of travel on 19th Street almost all of the cab of the Martin pickup is visible above the fence. The photographs were taken 75 feet and 50 feet west of the intersection of 19th Street with Grande. They show the pickup at points 75 feet and 50 feet north of the intersection and in the southbound lane on Grande. Fifty feet west on 19th Street is the place where the 'yield' sign was located; one of the places where the motorcycle owner testified he couldn't see unless he raised up.

The owner also testified he couldn't see 'closer' to the intersection. Surveyed elevations of the two streets and of the fence at its highest point show that at a height four feet above 19th Street, the pickup, which was over 6 feet in height, would always be visible over the fence.

The motorcycle owner's testimony as to his own obscured vision is inherently improbable because the undisputed physical facts show his vision was not obscured.

But Elaine was smaller. She was 5 feet 2 inches tall. It is undisputed that the seat of a motorcycle 'just like' the one in the accident is 31 1/2 inches above the ground. A 5 foot 2 inch female, seated erect on the motorcycle, has an eye level 4 feet 7 inches above the ground. These physical facts render inherently improbable the inference from the motorcycle owner's tetimony that Elaine's vision over the fence was obscured because of her size. The physical facts are that anyone with an eye level four feet or higher above 19th Street could see the cab of the pickup over the fence.

We do not know how Elaine was sitting or riding the motorcycle. We do not know her eye level as she traveled on 19th Street. The only inferences as to Elaine's vision being obscured by the fence come from the motorcycle owner's testimony. The physical facts make his testimony inherently improbable. Since his testimony is inherently improbable, there is neither evidence nor inference that Elaine's view of Martin's pickup was obscured by the fence.

The result is there is no factual basis for the theory of negligence asserted against Shoffner and Drum and both were entitled to directed verdicts. There being no factual basis for the theory of negligence, we do not reach the question whether the erection and maintenance of the fence provides a legal basis for imposing liability upon them. See Rest. Torts 2d, § 371 (1966).

Harmless error in exclusion of evidence.

Rio Rancho (Rio Rancho Estates, Inc.) was the owner and developer of the land with which this suit is concerned. It had imposed protective covenants upon lots in the subdivision, including a restriction limiting the height of fences to four feet. It had laid out the streets and dedicated them to public use. The streets--19th, Grande, and their intersection--were public streets at the time of the accident. Although public streets, Rio Rancho maintained them.

Plaintiff alleged that Rio Rancho permitted Drum to erect the fence asserted to obstruct Elaine's view of traffic on Grande. We have held there is no factual basis for this contention. Plaintiff also alleged that Rio Rancho '* * * erected an unauthorized traffic sign to control eastbound traffic on 19th Street which increased the hazard of injury to persons using the street. * * *'

The traffic sign is the 'yield' sign previously mentioned. The sign was adjacent to the paved portion of 19th Street and faced travelers going east. The evidence does not show whether Rio Rancho caused this sign to be erected. Plaintiff attempted to show the 'yield' was replaced by a 'stop' sign after the accident. The trial court ruled that plaintiff would not be permitted to show changes made after the accident. Plaintiff contends this ruling was error. Plaintiff asserts the evidence was admissible to show Rio Rancho's control over the sign. See Annot., 64 A.L.R.2d 1296, at 1311 (1959). We do not decide whether the ruling was error.

Evidence,...