Davis v. Jones

• Decision Date: 18 January 1956
• Docket Number: No. 5997,5997
• Citation: 292 P.2d 773,1956 NMSC 12,60 N.M. 470
• Parties: Wesley Carol DAVIS, a minor by Margaret C. Petersen, his guardian and next friend and Margaret C. Petersen, Plaintiffs-Appellants, v. J. Wilbur JONES and David Spector, a partnership, d/b/a Electrical Products of New Mexico and Charles L. Coon, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 773

292 P.2d 773

60 N.M. 470

Wesley Carol DAVIS, a minor by Margaret C. Petersen, his guardian and next friend and Margaret C. Petersen Plaintiffs-Appellants, v. J. Wilbur JONES and David Spector, a partnership, d/b/a Electrical Products of New Mexico and Charles L Coon, Defendants-Appellees.

No. 5997.

Supreme Court of New Mexico.

Jan. 18, 1956.

Joseph L. Smith, Albuquerque, Henry A. Kiker, Jr., Albuquerque, for appellants.

K. Gill Shaffer, Albuquerque, for appellees.

SADLER, Justice.

The plaintiff as an appellant before us asks the review of a judgment rendered against him by the district court of Bernalillo County pursuant to a favorable verdict for defendants in an action for personal injuries to her minor son, inflicted in a collision between a pickup truck and a motorcycle being ridden by the minor at time of the accident.

Issues submitted to the jury included primary negligence on the part of Charles L. Coon, driver of the pickup who is one of the defendants below, contributory negligence on the part of Wesley Carol Davis, the minor who was on the motorcycle and propelling it at time of the collision and last clear chance. The case went to the jury under a general charge and a verdict in favor of the defendants was returned into court upon which the judgment before us for review was entered. We shall state facts which we conceive to be fairly within the jury's verdict.

On December 29, 1953, at approximately 7:55 a. m., Wesley Carol Davis, a minor 14 years of age, was making the rounds of his delivery route for the Albuquerque Journal. It took in a certain area lying between San Pedro and San Mateo Boulevards in the city of Albuquerque which he covered on an Indian Brave Motorcycle. On the morning in question he had thrown the last paper on his route to a house on Zuni Street and was proceeding into the intersection of that street with San Mateo Boulevard. It runs north and south at the point where it is intersected by Zuni Street, proceeding east and west.

San Mateo Boulevard is a through street and a stop sign is located on Zuni at the point of its intersection with San Mateo. Notwithstanding presence of the stop sign the minor, Wesley, either failed to stop at all or, if he did stop, did not wait a sufficient time for any traffic to clear, before proceeding into the intersection. He entered the intersection slowly, at about 5 miles per hour on an arch of about 12 feet, when he was struck by the pickup driven by defendant, Coon, traveling as testified by him at about 25 miles per hour.

The area was flat and there were no obstructions to prevent a view in either direction as one proceeding north on San Mateo, or east on Zuni. The defendant, Coon, driving the pickup did not see the minor, Wesley Davis, until he struck him. As the minor approached the intersection, or shortly before entering it, he had observed the pickup approaching from the south at a distance, variously estimated by him to be from half a block to one and one-half blocks away.

At time of the collision the windshield on the pickup was frosted for about one inch around the rim but not so as to prevent clear vision by the driver, slightly less than perfect. The point of impact was some 12 feet, 3 inches, from the curbline of Zuni extended north. Indeed, the testimony and physical facts in evidence strongly suggest the pickup had almost cleared the intersection when it struck the motorcycle as it entered same on a wide sweeping curve. Additional physical facts, explanatory of location of the two vehicles at time of collision, are deducible from marks on them thereafter. The motorcycle was damaged on the left side, none to the rear. The damage to the pickup was on the front right fender.

After the collision the pickup, driven by defendant Coon, continued about 100 feet up San Mateo before coming to a stop. He testified that he did not 'brake' the car but allowed it to roll to a stop.

While it is true, under the testimony, that defendant, Coon, did not see Wesley Davis on his motorcycle until after the collision, it is equally true that the latter astride his motorcycle failed to see the pickup, after catching a glimpse of it some distance away, variously estimated at anywhere from one-half block to a block and one-half distant.

The plaintiff suffered severe injuries in the accident, including a broken leg requiring several operations, confinement in a hospital for more than two months, and other cuts and bruises. No question is presented on this appeal touching the damage from injuries, since the jury returned a verdict there was no liability on the part of the defendant. Judgment was entered on the verdict in favor of the defendants. Hence, this appeal.

The first claim of error, and the chief one, is that there is no substantial evidence to support a verdict for the defendants. This claim of error, of course, goes to the merits of the plaintiffs' case as a whole and will be first disposed of here.

The recital of facts within the verdict affords in and of itself satisfactory proof that the question of defendants' negligence was issuable before the jury. Certainly, the trial court could not properly rule that the driver of the pickup was negligent as a matter of law and instruct the jury accordingly....