Duncan v. Madrid

• Decision Date: 12 April 1940
• Docket Number: No. 4498.,4498.
• Citation: Duncan v. Madrid, 44 N. M. 249, 101 P.2d 382, 1940 NMSC 27 (N.M. 1940)
• Parties: DUNCANv.MADRID et al.
• Court: New Mexico Supreme Court

44 N.M. 249

101 P.2d 382

DUNCAN

v.MADRID et al.

No. 4498.

Supreme Court of New Mexico.

April 12, 1940.

Appeal from District Court, Santa Fe County; Irwin S. Moise, Judge.

Action by Lillian H. Duncan, as administratrix of the estate of J. Harper Duncan, deceased, against J. E. Madrid and another for death of intestate resulting from an automobile collision.From a judgment for plaintiff, defendants appeal.

Affirmed.

$7,500 for death of 48-year-old man, educated and in good health, and able to work and support his family, and who for 18 years had been employed at a salary of $200 per month, and who for a year and a half operated a filling station and grocery store, and had life expectancy of 22.36 years, held not excessive.Comp.St.1929, § 36-102.

Kiker & Sanchez and Anthony J. Albert, all of Santa Fe, for appellants.

Gilbert & Hamilton, of Santa Fe, for appellee.

ZINN, Justice.

Plaintiff below (appellee here), as administratrix of the estate of her deceased husband, brought suit against the defendants(appellants here) for damages under the death by wrongful act statute.1929 Comp.St., § 36-102.Death was the result of a rear-end collision when the car occupied by the deceased and one Jenperrin struck the rear end of the parked truck of defendant Madrid, being operated by defendant Trujillo.

The complaint alleged specific acts of negligence which were denied by the answer.The defendants charged contributory negligence, which was likewise denied by the reply.The case was tried to the court, which found for the plaintiff and awarded judgment for $7,500, from which this appeal is prosecuted.

The trial court's findings of fact material to a determination of the legal issues presented here, and which findings of fact are supported by substantial evidence and therefore not to be disturbed on appeal, are as follows:

That on the evening of October 11, 1935, after dark, and more than one-half hour after the sun had set, the defendant, Porfirio Trujillo, while driving defendant Madrid's Ford truck upon the highway known as U. S. Highway 64-285, between Espanola and Velarde at the request of and upon the business of defendant Madrid, and while accompanied by defendant Madrid, parked the Ford truck and left the same standing wholly upon the oiled or main travelled portion of the highway at a point approximately ten miles north of Espanola.At the time of so parking the Ford truck it was not disabled in such a manner that it would be impracticable to park the same off the main travelled portion of said highway.At the time and place the truck was parked it was entirely without lights burning either in the front or the rear thereof, and had no reflector in the rear thereof other than an unlighted tail-light.The defendants argue at length that the same is validly a reflector.This is immaterial in light of the result.The court found that no lighted flares were placed either in the front or to the rear of the truck.

The court found that at the point where the truck was parked the shoulders of the highway were level and of sufficient width to have safely permitted the driving of the truck completely off the oiled or main travelled portion of the highway and that the defendants had ample time prior to the accident to have done so, or to have put out flares or to have warned oncoming traffic of the existence of the truck on the highway, but that they made no effort to either move the truck or to put out flares or to warn oncoming traffic of the existence of the parked truck.

The court found that while the truck was so parked and left standing upon the highway that Duncan, accompanied by Jenperrin, while proceeding along the highway in a Hupmobile roadster, driven by Jenperrin in the same direction in which the truck had been travelling, collided with the rear end of the truck causing the injuries to Duncan from which he died.

As to the defendants' claim of contributory negligence, the court made findings of fact, likewise supported by substantial evidence and not to be disturbed, that at the time of the collision Jenperrin was operating the roadster in a careful and prudent manner consistent with safety; that the roadster was equipped with good lights and brakes, but that by reason of the absence of lights upon the truck or flares in the front or rear thereof and the location and condition of the truck on the highway, that Jenperrin, although making every reasonable effort to do so, was unable to avoid colliding with the truck.

The court also found that at the time of the accident neither Duncan or Jenperrin were under the influence of intoxicating liquor and that the negligent acts and omissions on the part of the defendants were the proximate cause of the accident resulting in the death of Duncan, and that Duncan and Jenperrin were entirely free from contributory negligence in connection with the accident.

As to the question of damages the court found that at the time of the accident Duncan was a man forty-eight years of age, in good physical and mental health, capable of earning and earning from $150 to $200 per month with which he supported his wife and daughter and had a life expectancy of 22.36 years, and assessed the damages at $7,500.

The court concluded as a matter of law that the acts and omissions of the defendants were such as would not have been committed by a person of ordinary prudence and said acts constituted negligence on the part of the defendants, were violations of the safety statutes of the State of New Mexico, and constituted negligence per se and were the proximate cause of the collision which resulted in the death of Duncan.The court also concluded that Duncan and Jenperrin were entirely free of contributory negligence in connection with the collision, and that plaintiff had been damaged in the sum of $7,500.

Defendants assign as error thirty-six points which are grouped for disposition under three headings, as follows:

1.The defendants were free of negligence.2.The decedent was guilty of negligence barring recovery.3.Failure of proof as to damages, if any, entitling plaintiff to recover.

Under the first point the defendants claim that they did not park or leave their truck standing on the highway in violation of law.In this contention the defendants are mistaken.

[1] It would burden this opinion without value to narrate all of the evidence which we find in the transcript in support of the court's findings.Such evidence as is essential to a discussion of the case will be touched upon.From the evidence it is sufficiently clear that the defendants did park the Ford truck, and left the same standing, wholly upon the oiled or main travelled portion of the highway at a point approximately ten miles north of Espanola, outside of a business or residence district, and that at the time of so parking the truck and leaving the same standing upon the oiled or main travelled portion of the highway it was practical to park the same off the main travelled portion of the highway and that at said time and place said truck was not disabled in such manner and to such extent that it was impossible to avoid stopping and temporarily leaving such truck in such position.Defendants' conduct was clearly a violation of 1929 Comp. St., § 11-823.The fact that the truck was standing on the highway after dark, and more than one hour after sunset, without lights burning either in the front or rear constitutes a violation of 1929 Comp.St., § 11-847.Unquestionably there were no flares set out by the defendants as required by L.1935, Ch. 75.

The defendants' contention is that the failure of the lights, the stopping of the truck and the collision were so nearly instantaneous that they had neither time to put out flares or drive the truck off the main highway.Their contention is contrary to the findings and evidence.

It is true that some of the evidence supporting the court's findings are circumstantial.Nevertheless, the plaintiff's case presents not only the more probable hypothesis of what occurred at the time of the accident, but it is also more consistent with the theory of the plaintiff as to what actually occurred than with the defendants' theory of instantaneous occurrence and nonavoidable accident.The record shows that the lights on the truck went out and that the defendants, instead of driving off the road and fixing the lights, or putting out flares, as required by law, remained on the road where the collision occurred.

Defendant Trujillo testified that he was going to first examine the car to see if the failure of the lights was due to a fuse blowing out and, “if it wasn't I was going to drive the truck off the highway and find out.”This clearly indicates that the truck could be driven off the highway and not left there as was done without lights or flares.

[2]Defendants contend that subsection (c) of Sec. 11-823, 1929 Comp.St., makes the law inapplicable to them because it does not make the law applicable to the driver of a vehicle which is disabled in such a manner and to such an extent that it is impossible to avoid stopping and temporarily leaving such vehicle in such position.They argue that they were not “parking” on the highway.Under the defendants theory the phrase found in our statute, to-wit: “no person shall park or leave standing ***” means only a voluntary stopping of a car on the highway and permitting it to remain there.We cannot agree with such construction.We believe that by the use of the phrase “*** or leave standing ***”the Legislature intended to make illegal any stopping and leaving of a vehicle on the highway for any length of time, unless, of course, as stated in the statute, the conditions be such that the car cannot be moved off the highway.In the instant case the car could have been moved off the highway, as Trujillo testified and the court found.

[3] Our statute is not applicable merely to such cars as are voluntarily parked on the highway, but...