Clay v. Tex.-Ariz. Motor Freight Inc.

• Decision Date: 25 May 1945
• Docket Number: No. 4871.,4871.
• Citation: 159 P.2d 317,49 N.M. 157
• Parties: CLAYv.TEXAS-ARIZONA MOTOR FREIGHT, Inc.
• Court: New Mexico Supreme Court

49 N.M. 157

159 P.2d 317

CLAY

v.TEXAS-ARIZONA MOTOR FREIGHT, Inc.

No. 4871.

Supreme Court of New Mexico.

May 25, 1945.

Appeal from District Court, Luna County; Charles H. Fowler, Judge.

Action by Ralph F. Clay against Texas-Arizona Motor Freight, Inc., to recover for injuries sustained in a collision between plaintiff's automobile and defendant's truck. Judgment for plaintiff and defendant appeals.

Reversed and remanded for a new trial.

Where defendant's theory was that plaintiff was guilty of contributory negligence proximately contributing to his injury for violation of village ordinance limiting speed to 15 miles per hour and evidence disclosed that plaintiff's automobile was traveling at a sufficiently high rate of speed, when it collided with defendant's tractor and trailer, weighing 36,300 pounds, to move such tractor and trailer six inches, refusal to instruct on defendant's theory by giving requested instructions on contributory negligence and speed was error.

[159 P.2d 318 , 49 N.M. 158]

W. C. Whatley and R. C. Garland, both of Las Cruces, E. Forrest Sanders, of Lordsburg, and Carl H. Gilbert, of Santa Fe, for appellant.

Joseph W. Hodges and Clyde T. Bennett, both of Silver City, for appellee.

LUJAN, Justice.

Ralph F. Clay, plaintiff, hereinafter called appellee, filed his action against Texas-Arizona Motor Freight, Inc., defendant, hereinafter called appellant, to recover damages for personal injuries sustained due to a collision of appellee's automobile with appellant's truck. A judgment was entered for appellee on the verdict of the jury and appellant appeals.

The record substantially discloses that on the night of the accident one John Lang, an employee of the appellant, drove one of its trucks with a semi-trailer attached into the town of Deming, over U. S. Highway 80, turned into Gold Avenue and proceeded on said street to a warehouse located at the corner of Gold and Hemlock Streets. Gold Avenue where the accident occurred constitutes a portion of U. S. Highway 260, leading from Deming to Columbus, New Mexico. This street is 90 feet wide from one building line to another. A portion of this street is paved in the center at a width of 20 feet, the rest is gravelled. When the driver reached the warehouse he started backing his truck and semi-trailer to unload freight, but when the rear of the trailer was within eleven feet of the warehouse, the driver stopped. At that time the right front wheel of the truck was about two feet on the paved portion of the street, the remainder of the truck and trailer being entirely off and on the gravel portion of the street. There were no flares placed either in front, back or sides of the truck and semi-trailer, at time of the accident. The evidence is in conflict as to the exact direction in which the truck headlights were shining, certain of the witnesses testifying that they were shining southwest and others that they were pointed north, along the street. There is also a conflict in the testimony as to whether or not the sidelights on the trailer were burning at the time of the collision. The appellee testified that he was travelling north on Gold Street in a 1939 Chevrolet sedan, and that just before the accident there was a flash of headlights which seemed to him were in the center of the paved slab and that he swung to the right to avoid them and then collided with the trailer. The evidence further shows that at the time of the collision the total weight of the truck was 36,300 pounds.

On this appeal no claim is made that the judgment is not supported by the evidence. All assignments of error are based upon the refusal of requested instructions.

The appellant urges that the court committed error in refusing its instructions Nos. 1 and 3 as requested, and in failing to instruct the jury as to its theory of the case. We quote these requested instructions:

‘No. 1. An ordinance of the Village of Deming, which fixes and limits the speed limit of motor vehicles in a business district at not to exceed 15 miles per hour; and also places Gold Street, which includes the scene and place of the collision in question in a business district, has been introduced in evidence and is before you for consideration. You are instructed, that if you find and believe from a preponderance of the evidence, that the plaintiff, Ralph F. Clay, was driving and operating his automobile at the time and place of said collision, at a speed in excess of 15 miles per hour, and that such speed contributed to and was a proximate cause of the collision in question, as the terms of contributory negligence and proximate cause have been defined to you, then your verdict should be for the defendant.’

‘No. 3. You are further instructed that under the ordinance of the Village of Deming, which has been introduced in evidence in this case, where the pleadings and evidence show that the collision occurred, was a business district in which the legal rate of speed was restricted to 15 miles per hour, and the driving of an automobile through such business district at a greater rate of speed than that is negligence of itself.’

It is also contended by appellant that the trial court erred in refusing to instruct the jury upon its theory that at and just prior to the accident the appellee was driving his automobile in excess of the speed allowed by law, as fixed by the ordinance of the Town of Deming, and that such action on the part of the appellee constituted negligence per se, which contributed proximately to the accident complained of and to the appellee's damages resulting therefrom.

Chapter 56, Sec. 1, subdivision (b), New Mexico Session Laws of 1941, N.M.S.A.1941, Sec. 68-504, provides as follows: ‘Maximum speed of motor vehicles of any kind shall not exceed 20 miles per hour on all highways in business district as defined herein.’

Laws 1929, Chap. 75, Sec. 1, subdivision (t), N.M.S.A.1941, Sec. 68-401, subdivision (t), provides as follows:

“Business District.' The territory contiguous to a highway when fifty (50) per cent or more of the frontage thereon for a distance of three hundred (300) feet of (or) more is occupied by buildings in use for business.'

The material portion of Ordinance No. 147 referred to by appellant, and introduced by appellee himself, the existence of which at all material times was undisputed, provides that every person operating or driving a motor or other vehicle on the streets, alleys or other public highways of the village of Deming shall operate same in a careful and prudent manner. It provides further that no person shall operate or drive a motor vehicle anywhere on Gold Avenue from its intersection with First Street, north of the railroad tracks, to the intersection with Ash Street, at the Court House Park, which streets are designated as being in the business district of the village of Deming, at a greater rate of speed than fifteen miles per hour; the ordinance further provides that no vehicle shall be parked or shall so occupy any street as to interfere with or interrupt the passage of other vehicles.

The appellant, in its answer, among other things pleaded contributory negligence on the part of the appellee, in that, at and just prior to the time of the collision, he was driving his automobile at a high and rapid rate of speed greatly in excess of the rate of speed permitted by law.

Did the speed at which appellee was driving his automobile contribute as a proximate cause to such collision and resulting injury to him?

The court did not instruct the jury on this point but informed the jury that the answer alleged:

‘* * * that notwithstanding the manner in which the driver was backing the tractor and semi-trailer on the easterly side of the street to and into the warehouse, notwithstanding the position of said equipment on the street at that time, no collision would or could have occurred between plaintiff's automobile and the semi-trailer except for the utter carelessness and gross negligence of the plaintiff in driving his automobile off the main travelled portion of the street and at a high and rapid rate of speed, greatly in excess of the speed permitted by law and that which was prudent at the time and under the circumstances, and without keeping any lookout or exercising any care as to what objects were in the street ahead of him; that the plaintiff in so driving at such time and place and in the circumstances was grossly negligent and acting in utter disregard of his own safety and the rights and safety of others upon the highway, and that his said conduct contributed proximately to the collision and that, had he not acted in such negligent and careless manner, no collision would or could have occurred.’

However, the court instructed the jury that the law presumes that a person saw that which by the exercise of ordinary care he could have seen had he looked; that, if after considering all of the evidence in the case they find that the appellee, Ralph F. Clay, when he drove north on said Gold Avenue, by the exercise of ordinary care, as that term was defined to them, could have seen the appellant's truck, had he looked, it is presumed that he did see it, and if they should further find from a consideration of all the evidence that his actions were not those of an ordinarily prudent person under like circumstances, as that term was defined to them, then the appellee was guilty of contributory negligence, under the affirmative plea of negligence on the part of appellee.

The jury was in no way instructed that if the appellee was driving in excess of fifteen miles per hour through a business district, as heretofore referred to, that this constituted negligence per se (Pettes v. Jones, 41 N.M. 167, 66 P.2d 967; Bell v. Carter Tobacco Co., 41 N.M. 513, 71 P.2d 683; Melkusch v. Victor American Fuel Co., 21 N.M. 396, 155 P. 727, 729), and if it contributed proximately to cause the injury it would bar recovery.

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