Elder v. Marvel Roofing Co.

• Decision Date: 22 June 1964
• Docket Number: No. 7450,7450
• Citation: 1964 NMSC 152,393 P.2d 463,74 N.M. 357
• Parties: Angelo ELDER, Jr., and Lee Edna Elder, his wife, Plaintiffs-Appellees, v. MARVEL ROOFING CO. and Ben C. Cherry, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 463

393 P.2d 463

74 N.M. 357

Angelo ELDER, Jr., and Lee Edna Elder, his wife, Plaintiffs-Appellees, v.MARVEL ROOFING CO. and Ben C. Cherry, Defendants-Appellants.

No. 7450.

Supreme Court of New Mexico.

June 22, 1964.

Modrall, Seymour, Sperling, Roehl & Harris, Allen C. Dewey, Albuquerque, for appellants.

Lorenzo A. Chavez, Melvin L. Robins, Warren F. Reynolds, Albuquerque, for appellees.

COMPTON, Chief Justice.

This action was instituted for damages for personal injuries sustained by the plaintiffs-appellees as a result of a collision on U. S. Highway 66, a four-lane highway, approximately 30 miles west of Santa Rosa, New Mexico between an automobile driven by the appellee, Angelo Elder, Jr., and a diesel tractor-trailer truck driven by the appellant, Ben C. Cherry, while employed by the appellantMarvel Roofing Company.Both vehicles were traveling west.The accident occurred about 9 o'clock at night in the north lane of traffic when the truck collided with the rear of the appellees' car.

The pleadings put in issue the negligence and contributory negligence of the parties.In addition, affirmative defenses of unavoidable accident and assumption of risk were pleaded.The cause was tried to a jury which awarded plaintiffAngelo Elder, Jr., $2,500.00 and plaintiffLee Edna Elder, his wife, $10,000.00.Motions by the defendants for a remittitur and for judgment notwithstanding the verdicts or for a new trial were denied.Judgment was entered upon the verdicts and the defendants have appealed.

Two points are urged by the appellants for reversal or a new trial (1) the verdicts are excessive as a matter of law, and (2)the trial court's refusal to give defendants' requested instruction on unavoidable accident.

It is at once apparent that if the trial court erred in failing to instruct on unavoidable accident, the judgment must be reversed and a new trial ordered; hence, we will dispose of this question first.The appellants contend that, in addition to being pleaded, the defense of unavoidable accident was fairly raised by the evidence relating to an unpreventable mechanical failure in the electrical system of the appellees' automobile from which the jury might reasonably have concluded that the accident occurred without the negligence of either party to the suit.

The Elders testified that just prior to the accident, about 3 miles east of where it occurred, the generator light in their car showed red; that Mr. Elder stopped the car and checked the headlights and the taillights and they were burning; that they continued on their way observing all the while that if the car was driven less than 40 miles an hour the generator light would not show red.The evidence is that the headlights were on at all times, even when the generator was showing red, yet, neither of the Elders could testify that the taillights were in operation just prior to the time of the accident.There were no witnesses to the accident other than the occupants of the two vehicles.The investigating police officer testified to the best of his recollection that the headlights were operating after the accident, but he did not remember about the taillights, indicating he either did not check them or that the damage to the rear of the car made it impossible for him to go so.

The appellant, Cherry, testified that he was driving at approximately 50 miles an hour with his headlights on low beam; that after going through an underpass the Elder car appeared suddenly in front of him, some 35 or 40 feet away; that he immediately fully applied his brakes but, fearing there might be traffic passing him on his left in the other west-bound lane, he did not attempt to change lanes or swerve to the left but held straight ahead and collided with the Elder car.

In a deposition taken prior to the trial and at the trial, Cherry stated he did not see any taillights on the car.On cross-examination, however, when asked if he was trying to give the jury the impression that there were no lights on the appellees' vehicle he replied 'I can't say whether there was or not, because if I didn't see them, it is possible that they could not have been burning.I really don't know.'In addition to other testimony to this same effect, there was admitted into evidence a written statement made by Cherry the day following the accident, which reads:

'At about nine p. m. I was approximately 15 miles east of Clines Corner and I dozed off for a moment.I cannot be sure if I dozed off but it is the only explanation I can think of.I suddenly was aware of taillights directly in front of me and by that time it was too late to stop or swerve to avoid the other car.'

The propriety of giving an instruction on unavoidable accident is tested by examining the evidence to determine whether a jury could conclude that the accident occurred without the negligence of either party to the suit.Horrocks v. Rounds, 70 N.M. 73, 370 P.2d 799;Baros v. Kazmierczwk, 68 N.M. 421, 362 P.2d 798;Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362;Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028.In Horrocks v. Rounds, supra, we said:

'* * * We must again caution, as we did in both the Lucero and Baros cases, that it is not every motor vehicle accident case that warrants the giving of an unavoidable accident instruction.There should be a genuine basis for the giving of the instruction such as some reasonably unexpected surprise or road condition, unpreventable mechanical failure, sudden appearance and reasonably unanticipated presence of a pedestrian or other object in the road; and such must be coupled with circumstances which present a fair issue of whether the failure of the driver to anticipate or sooner guard against this danger, or to avoid it, is consistent with a conclusion of the exercise of his due care. * * *'

There is no evidence in the record of an unpreventable mechanical failure of the electrical system in the Elder automobile.Testimony that the generator light showed red when the car was driven faster than a certain...