Curtis v. Schwartzman Packing Co.

• Decision Date: 24 July 1956
• Docket Number: No. 5976,5976
• Citation: 61 N.M. 305,299 P.2d 776,1956 NMSC 70
• Parties: W. D. CURTIS, Plaintiff-Appellee, v. SCHWARTZMAN PACKING COMPANY, a corporation, and Willie Gutierrez, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 776

299 P.2d 776

61 N.M. 305

W. D. CURTIS, Plaintiff-Appellee, v. SCHWARTZMAN PACKING COMPANY, a corporation, and Willie Gutierrez, Defendants-Appellants.

No. 5976.

Supreme Court of New Mexico.

July 24, 1956.

McAtee & Toulouse, Wm. C. Marchiondo, Albuquerque, for appellants.

W. W. Atkinson, Albuquerque, for appellee.

KIKER, Justice.

The plaintiff, W. D. Curtis, was attempting to pass a Schwartzman Packing Company truck. The truck made a left turn and the car and truck collided. Plaintiff brought suit for $6,000 against Schwartzman Packing Company and its truck driver.

The complaint alleged the collision was due to the negligence of defendant's truck driver failing to signal for a left turn; failing to make such a signal continuously in the manner provided by law; failing to ascertain whether the turn could be safely made; and turning left while plaintiff was attempting to pass defendant's truck, whereupon the vehicles collided; also that the defendant's truck was not equipped with a rear vision mirror.

The items of damage having been attacked in several respects, we set out in full Paragraph V of plaintiff's complaint:

'As a proximate result of the negligence of the defendants, plaintiff has been damaged as follows:

'(a) The said passenger automobile of plaintiff was damaged in the amount of $450.00.

'(b) Plaintiff lost the use of his car, to his damage in the amount of $200.00.

'(c) Plaintiff suffered numerous and severe wounds, contusions, bruises, lacerations, abrasions, shock, and other painful and serious injuries, and experienced great physical and mental pain and anguish, and has required medical attention and treatment and will require further such medical attention and treatment, the total cost of which will be approximately $250.00.

'(d) Plaintiff was disabled and incapacitated, and was thereby prevented from transacting and attending to his business, to his damage in the amount of $2,500.00.

'Wherefore, plaintiff prays judgment against the defendants, and each of them, in the amount of $6,000.00, together with costs, and for such other and further relief as he is entitled in the premises.'

Defendants' answer denied all but formal allegations and set up as affirmative defenses the following: (1) That the plaintiff was negligent in that he operated his vehicle at an unlawful rate of speed, recklessly and without due care or caution for the safety of others, disregarded a left-hand turn signal by the truck driver, and attempted to pass the truck without giving an audible horn signal; (2) that the plaintiff violated certain statutory provisions concerning rules of the road; (3) that the plaintiff was contributorily negligent; (4) that the accident waas unavoidable; and (5) that plaintiff assumed the risk.

The issues were tried to a jury which returned a verdict in the amount of $3,000 for plaintiff. Defendants appeal from the judgment thereon.

Appellants have presented in the brief seventeen assignments of error which are argued under six points.

The first of these points states: 'Defendants were entitled to a directed verdict as contributory negligence was established as a matter of law.' Under this point defendant relies upon his assignments of error 8, 9 and 16.

Assignment of error No. 8 asserts error in the refusal of the court to direct a verdict upon the motion of defendant at the close of plaintiff's evidence. Assignments of error Nos. 9 and 16 are in substance the same as assignment No. 8.

The motion for directed verdict was in the following language, quoted in the assignment of error:

'We have a motion at this time requesting the Court to direct a verdict for and on behalf of the defendants and state our grounds as follows: First, that the plaintiff has failed, substantially, to prove that he was free of negligence, sole negligence of the defendant's agent; and, we feel, as a matter of law, it is quite obvious there is contributory negligence that the Court should rule upon, that the man is contributorily negligent, as a matter of law. Therefore, we ask that the Court at this particular time to direct a verdict.'

The motion, in the language just quoted, was properly overruled by the court.

This court has held repeatedly that the question whether a plaintiff is guilty of contributory negligence is for the determination of the jury. This court said in Williams v. Haas, 52 N.M. 9, 189 P.2d 632, 635, that even if a negligent violation of statute on the part of plaintiff is shown, 'still these facts do not resolve the decisive inquiry of causation. After all contributory negligence is not established until causal relationship between it and the injury is shown. * * * He was entitled to have it [trial court and jury] say whether any violation shown by him of statutory regulations or the common law of due care was a proximately contributing factor in bringing about his injury.'

No burden rested upon plaintiff to show that he was free from negligence.

Point One is ruled against appellants.

Under appellants' Point Two it is claimed that the court erred in admitting the 'Blue Book' to establish the value of plaintiff's car, and in admitting testimony as to total loss, rental value, and loss of use of car, and in submitting its instruction No. 12; and that the admission of such testimony and the giving of said instruction created a situation that could have had no other effect than to confuse the jury. Defendants-appellants objected to some of the testimony listed in the statement of the point, but as to some of the other testimony, defendants consented thereto and asked many questions.

The first attack is upon the admission of the 'Blue Book'. It is clear that, in the opinion of plaintiff, who had spent many years of his active life as an automobile mechanic, his automobile, after the collision, could not be placed in such state of repair as would restore it to its former condition. He therefore sold it for salvage for $100. The record shows no contest as to this amount being a reasonable salvage value for the automobile. The complaint alleged damage to the automobile to the extent of $450. The determination as to whether the car had no value except for salvage after the collision was a matter for the jury. It was therefore necessary that testimony of some kind should be given to the jury as to the value of the car before the collision. For the purpose of doing this, the 'Blue Book' was admitted in evidence, over the objection of defendants-appellants.

This book, generally used in the automobile field as a price list and guide to used car values in designated territories, is distributed widely to those engaged in the purchase and sale, and the insuring and financing of new and used automobiles, and it is generally relied upon by dealers in the trade. This is a matter of common knowledge and the admissibility of such general market reports and price lists as this was long ago recognized in New Mexico as an exception to the hearsay rule. California Sugar & White Pine Co. v. Whitmer Jackson & Co., 33 N.M. 117, 263 P. 504. Compare Fulwiler v. Traders & General Ins. Co., 59 N.M. 366, 285 P.2d 140.

Plaintiff's allegation in his complaint as to damage to his car was a general allegation which would admit proof of either the loss of the value of the car, except for salvage value, or the cost of repairs and loss of use of the car while being repaired. There was evidence in the record upon which the jury could have found total loss less salvage, or, if the damage to the car was reparable, cost on account of repairs and the value of the loss of use of the car. Restatement of Torts, Sec. 928; 5 Am.Jur. 905, Sec. 745, 'Automobiles'; Tremeroli v. Austin Trailer Equipment Co., 102 Cal.App.2d 464, 227 P.2d 923; Johnson v. Central Aviation Corp., 103 Cal.App.2d 102, 229 P.2d 114.

The instruction complained of was intended by the court to inform the jury, if it should be found that plaintiff was entitled to recover from defendants for the damage to plaintiff's car, and if the car after the collision had no value except for salvage, in that event plaintiff would be entitled to the difference between the reasonable market value of the car immediately before the collision and its reasonable value immediately after the collision, but that if it should be found that the plaintiff's car could have been restored to its former condition by repairs, and if the jury should find for plaintiff, then his damages should be in such amount as would afford the plaintiff the reasonable cost of repairs and a reasonable amount for the loss of use of the car during the time necessary to make the repairs.

There is nothing about the instruction which could have been confusing to the jury as appellants insist; and there is nothing about it which could have led the jury to believe that it might award the plaintiff damages for practically total loss and also for loss of any other amount. We think the attack made upon the instruction is not well taken. Industrial Supply Co. v. Goen, 58 N.M. 738, 276 P.2d 509.

Point Three of defendants' brief raises the following: (1) That the court erred in instructing that the plaintiff would be entitled to compensation for diminution of future earning capacity as there was no substantial evidence to justify such an instruction; (2) that it was error to instruct concerning the plaintiff's life expectancy based on mortality tables as there was no substantial evidence of permanent injury; and (3) that these instructions created an issue not alleged in the pleadings or justified by the proof.

We agree with defendants that the court fell into error in giving the instructions complained of in the statement of Point Three.

The testimony offered in support of the propositions that the plaintiff was permanently injured and that there would be consequent diminution of his earnings throughout the remainder of his life is that of the plaintiff and of Dr. Schultz, plaintiff's...