Bunton v. Hull

• Citation: 177 P.2d 168,51 N.M. 5,1947 -NMSC- 005
• Decision Date: 06 February 1947
• Docket Number: 4968.
• Parties: BUNTON v. HULL.
• Court: Supreme Court of New Mexico

177 P.2d 168

51 N.M. 5, 1947 -NMSC- 005

BUNTON
v.
HULL.

No. 4968.

Supreme Court of New Mexico

February 6, 1947

Appeal from District Court, Chaves County; James B. McGhee, Judge.

Action by O. J. Bunton, administrator of the estate of Victoria Bunton, deceased, against J. B. Hull for death of plaintiff's daughter resulting from an automobile collision. From a judgment for defendant, plaintiff appeals.

Judgment affirmed.

Generally, a witness must testify as to matters within his own personal knowledge. [177 P.2d 170]

[51 N.M. 6] E. E. Young, of Roswell, for appellant.

James T. Jennings, of Roswell, for appellee.

[51 N.M. 7] LUJAN, Justice.

The appellant, as plaintiff below, brought this action to recover damages from defendant-appellee, for the death of his daughter, which resulted from an automobile collision occurring at the intersection of Highway No. 285 and the County Club road, just beyond the limits of the town of Roswell. The appellant, prior to suit, qualified as administrator of the estate of his deceased daughter, Victoria Bunton, and sued in that capacity.

The case was tried to a jury, after being charged in a manner agreeable to both parties as evidenced by the absence of exceptions to the trial court's affirmative instructions, which returned a verdict in favor of the defendant. A motion to set aside the verdict and grant appellant a new trial was overruled, and it is from this order and the final judgment on the verdict that appellant appeals.

The first point relied upon by appellant for reversal is that the trial court erred in overruling his motion to grant him a new trial. The grounds upon which it was based were that the verdict was contrary to the law and the evidence, and the court's refusal to give his requested instructions Nos. 6 and 9.

The collision occurred at approximately 11:00 o'clock on the night of March 22, 1945, at the intersection of the two streets mentioned above. Donald Maurer, with whom the deceased was riding in the front seat, was driving a medium weight car, a 1936 Dodge sedan, while the appellee's truck was a very large and heavy vehicle. Highway No. 285 is a paved through highway which has a considerable number of residences built on each side of it as it approaches the city limits of Roswell. It carries a considerable volume of traffic and is intersected by the County Club road at a point north and just beyond the city limits. The former extends north and south and the latter east and west. West of said highway and on the south side of the Country Club road was a 'stop' sign to warn drivers of motor vehicles that they were approaching a through highway. At the point in dispute in this intersection, the appellee's truck struck the rear left door and fender of the passenger car considerably damaging the same and causing injurires to Victoria Bunton from which she died within a few minutes after the accident.

Section 68-521, Compilation 1941, reads as follows:

'Vehicles must stop at certain through highway.--The state highway commission with reference to all highways and local authorities with reference to highways under their jurisdictions are hereby authorized to designate main traveled or through highways by erecting at the entrances thereto from intersecting highways signs [51 N.M. 8] notifying drivers of vehicles to come to a full stop before entering or crossing such designated highway, and whenever any such signs have been so erected it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto. All such signs shall be illuminated at night or so placed as to be illuminated by the headlights of any approaching vehicle or by street lights.'

These precise and definite regulations were enacted for the protection of the traveling public; their purpose was to avoid collisions at through highway intersections by requiring all operators of motor vehicles, in abedience to a 'stop' sign, to bring their automobiles to a full stop before entering or crossing such designated through highways, and to yield the right of way to other vehicles not so obliged to stop. Relative to this matter, Earl Othel Niceley, the driver of the truck, testified as follows:

'Q. How far was this car from you or from the side of the road when you first saw it? A. It was just almost on the pavement when I first saw it; it just came out from behind that building.

'Q. Did that car stop before entering the intersection? A. No, sir, it did not stop.'

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