Fitzgerald v. Valdez

• Decision Date: 24 April 1967
• Docket Number: No. 8208,8208
• Citation: 427 P.2d 655,1967 NMSC 88,77 N.M. 769
• Parties: Roy G. FITZGERALD, Executor Estate of Roy B. Fitzgerald, Plaintiff-Appellant, v. Alfred A. VALDEZ, Defendant-Appellee. Alfred A. VALDEZ, Third-Party Plaintiff-Appellant, v. Warren Lee FITZGERALD, Third-Party Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 655

427 P.2d 655

77 N.M. 769

Roy G. FITZGERALD, Executor Estate of Roy B. Fitzgerald, Plaintiff-Appellant, v. Alfred A. VALDEZ, Defendant-Appellee.

Alfred A. VALDEZ, Third-Party Plaintiff-Appellant, v. Warren Lee FITZGERALD, Third-Party Defendant-Appellee.

No. 8208.

Supreme Court of New Mexico.

April 24, 1967.

Rehearing Denied May 25, 1967.

J. Ernest Corney, Fred Nohl, Albuquerque, for appellant.

[77 N.M. 772] Modrall, Seymour, Sperling, Roehl & Harris, Frank H. Allen, John R. Cooney, Albuquerque, for third party plaintiff-appellant.

Keleher & McLeod, Russell Moore, Albuquerque, for appellee.

OPINION

WOOD, Judge, Court of Appeals.

The issues decided concern: (1) contributory negligence as a matter of law and (2) the family immunity doctrine.

Warren Lee Fitzgerald, son of Roy B. Fitzgerald, and difficulty in starting his car and asked his father for assistance. Twice his father, in his car, pushed Warren's car until it started. Warren's car stalled again. The father drove his car in front of his son's car and was between the two vehicles attaching a tow chain when Warren's car was struck in the rear by a vehicle driven by Mr. Valdez. The father died from injuries received in this collision.

While his father was between the vehicles, Warren connected a flashlight into his car's cigarette lighter and signald with the flashlight as a northbound car approached and went around the Fitzgerald vehicles. Warren then pulled the flashlight connection out of the cigarette lighter to unwrap the cord. While unwrapping the cord, he saw Mr. Valdez' car approaching. Warren unsuccessfully attempted to reconnect the flashlight and jumped from his car just before the collision.

The accident occurred on Carlisle Street, N.E. in Albuquerque in the block immediately south of Indian School Road. The two Fitzgerald vehicles were in the curb lane on the east side of the street, facing north. The curb lane is over twenty-one feet in width. The record does not show the distance between the vehicles and the curb.

The accident happened at night. There was a street light on Indian School Road, but we do not know the distance from the street light to the accident scene. The night was characterized as dark. Warren's car did not have lights burning at the time of the accident. Mr. Valdez' lights were on low beam; he first saw Warren's car when he was fifty to seventy-five feet from it. Mr. Valdez applied his brakes and attempted to turn to the left before hitting Warren's car.

Mr. Valdez had been visiting with friends in a bar. Enroute home from the bar he was involved in the accident. He was at the bar for two and three-fourths hours, during which time he consumed two beers, two highballs and a portion of a third highball.

At the time of the collision Warren was twenty-one years and nine months old. He was a student at the University of New Mexico, living in his father's home and being supported by his father.

Plaintiff's wrongful death action alleged negligence of Mr. Valdez as the proximate cause of the death. Mr. Valdez' answer alleged that decedent's negligence was a proximate contributory cause. Mr. Valdez' third party complaint against Warren alleged that Warren was negligent and that this negligence was either the sole proximate cause or a contributory proximate cause of the death.

The trial court entered summary judgment in favor of defendant and third party defendant. Plaintiff's appeal asserts that there was no contributory negligence as a matter of law and that the doctrine of last clear chance was applicable. We do not reach the question of last clear chance since we hold that decedent was not contributorily negligent as a matter of law. Mr. Valdez' appeal contends that the family immunity doctrine does not bar his third party complaint. We agree.

The question of contributory negligence is properly taken from the jury only when reasonable minds cannot differ on the question. Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364 (1966). Relying on Gray v. Esslinger, 46 N.M. 421, 130 P.2d 24 (1942). Mr. Valdez asserts that under the undisputed facts, reasonable minds cannot differ on the question of decedent's contributory negligence.

The term 'contributory negligence' embraces both negligence and proximate cause. Silva v. Waldie, 42 N.M. 514, 82 P.2d 282 (1938); New Mexico Uniform Jury Instruction No. 13.1; see Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370 (1963); and Committee Comment to New Mexico Uniform Jury Instruction No. 12.10.

Here, the contributory negligence question has three aspects: (1) Did decedent violate a statute with the result that he was negligent per se? (2) Was decedent negligent under the common law? (3) If decedent was negligent as a matter of law, was this negligence a proximately contributing factor in his death? None of these questions can be answered in the affirmative as a matter of law.

Statutory violations are negligence per se if the statute violated was enacted for the benefit of the person injured. Bouldin v. Sategna, supra; Hayes v. Hagemeier, 75 N.M. 70, 400 P.2d 945 (1963). Our concern here is whether a statute is applicable, and if applicable, whether there was a violation. Mr. Valdez relies on §§ 64--20--53 and 64--20--25(b), N.M.S.A. 1953.

Section 64--20--51, N.M.S.A. 1953, defines the term 'motor vehicle' as used in § 64--20--53, N.M.S.A. 1953, and that definition does not include the Fitzgerald cars, which were passenger vehicles. Section 64--20--53, N.M.S.A. 1953, is not applicable.

Section 64--20--25(b), N.M.S.A. 1953, pertains to lamps on vehicles parked or stopped on a roadway. The lamp requirements of this section apply when '* * * there is not sufficient light to reveal any person or object within a distance of 500 feet upon such highway, * * *' The undisputed facts in the record are insufficient to determine whether, as a matter of law, this section has been violated--the record does not show whether there was sufficient light to reveal a person or object within a distance of 500 feet.

Nor can we say as a matter of law that § 64--20--25(b), N.M.S.A. 1953, applied to decedent. It is undisputed that decedent was rendering assistance at the request of Warren. It was Warren's car that was without lights. Section 64--20--1, N.M.S.A. 1953, indicates to whom § 64--20--25(b) applies. Whether § 64--20--25(b) applied to decedent is a question of fact.

Mr. Valdez asserts that as a matter of law decedent violated the common law duty to exercise reasonable care for his own safety. He relies on Tibbetts v. Dunton, 133 Me. 128, 174 A. 453, (1934), a case where plaintiff was changing a tire and while doing so, was struck by defendant's vehicle. A jury verdict for plaintiff was set aside on the basis that plaintiff was contributory negligent as a matter of law because he was in a dangerous situation, did not watch out for traffic, did not rely on the person assisting him to keep watch, and the assistant kept no watch. Aside from any question concerning the correctness of the result reached, here, it is undisputed that Warren was looking out for traffic--this fact distinguishes it from the Tibbetts case.

Whether decedent failed to exercise reasonable care for his own safety cannot be determined by considering only the actions of decedent. Whether decedent's actions did or did not constitute ordinarily care depends on the circumstances of the case. See Archuleta v. Jacobs, 43 N.M. 425, 94 P.2d 706 (1939); Le Doux v. Martinez, 57 N.M. 86, 254 P.2d 685 (1953); New Mexico Uniform Jury Instruction No. 12.2. Decedent's going between the cars to connect the tow chain must be considered in relation to Warren's actions, to the lighting conditions, to the width of the street, to traffic conditions--to all the circumstances. Whether decedent was negligent was a question of fact for the jury.

Even if decedent had been negligent as a matter of law, there is the question whether such negligence was a proximately contributing factor in his death. The question of causation exists when the negligence is negligence per se, Bouldin v. Sategna, supra; Horrocks v. Rounds, 70 N.M. 73, 370 P.2d 799 (1962); Williams v. Haas, 52 N.M. 9, 189 P.2d 632 (1948). It also exists when the negligence is common law negligence. Baca v. Board of County Commissioners, 76 N.M. 88, 412 P.2d 389 (1966); Rivera v. Ancient City Oil Corp., 61 N.M. 473, 302 P.2d 953 (1956).

In asserting that as a matter of law the cause of the death was negligence on the part of decedent, Mr. Valdez relies on Gutierrez v. Koury, 57 N.M. 741, 263 P.2d 557 (1953). The Gutierrez case is distinguishable. There, the trial court found that plaintiff was not negligent and concluded that the accident (similar to the one here involved) was caused solely by the negligence of the defendant in leaving his truck on the highway without flares or other lights to warn other motorists. The conclusion as to causation followed from findings made after trial.

Here, we have had no trial and no determination of negligence can be made as a matter of law.

The question of causation may be determined as a matter of law. Such a determination was made in Bouldin v. Sategna, supra. However, even if a party is negligent, such negligence is not necessarily a contributing cause as a matter of law. Horrocks v. Rounds, supra. Where reasonable minds might very well differ on the question of proximate cause, the matter is issuable before a jury. Rivera v. Ancient City Oil Corp., supra; Chavira v. Carnahan, No. 7918, 77 N.M. 467, 423 P.2d 988.

Here, reasonable minds could differ as to whether decedent's acts were a contributing proximate cause of the death. As on the question of decedent's negligence, so here on the question of causation, all of the circumstances must be considered. Decedent's estate was entitled to have the jury say whether any violation by decedent of statutory regulations or the common law of due care was a proximate contributing factor in...