FLOECK v. HOOVER

• Decision Date: 12 July 1948
• Docket Number: No. 5087,5087
• Citation: 52 N.M. 193,195 P.2d 86
• Parties: FLOECK et al. v. HOOVER.
• Court: New Mexico Supreme Court

52 N.M. 193

195 P.2d 86

FLOECK et al.

v.HOOVER.

No. 5087.

Supreme Court of New Mexico.

April 27, 1948.

Rehearing Denied July 12, 1948.

[195 P.2d 87, 52 N.M. 195]

Williams & Beimfohr, of Tucumcari, for appellant.

Rodey, Dickason & Sloan, Frank M. Mims and Jackson G. Akin, all of Albuquerque, for appellee.

COMPTON, Justice.

Plaintiff's intestate, Gerald M. Floeck, was killed as a result of a collision between a bucking horse he was riding, and an automobile driven by defendant, at a point on highway 66 near the Cory-Penn Filling Station, immediately west of Tucumcari, New Mexico. The case was submitted to a jury upon the issues of the negligence of the defendant and the contributory negligence of the deceased. The trial court refused to instruct the jury on the issue of last clear chance. The jury returned a verdict for the defendant and following the overruling of a motion for a new trial, judgment was entered in accordance with the verdict.

Three grounds are urged for a reversal of the judgment. First, the refusal of the court to instruct the jury on the doctrine of last clear chance; second, in refusing to submit to the jury the issue of whether the scene of the collision was a business or resident district; and third, in refusing to grant a new trial on the ground of newly discovered evidence.

Since we are called on to determine whether the trial court committed error in its refusal to give an instruction on the doctrine of last clear chance, it is well to announce those factual matters as will present such an issue. It must appear, (1) that plaintiff has been negligent, (2) that as a result of his negligence he is in a position of peril from which he cannot escape by the exercise of ordinary care, (3) that the defendant knows or should have known of plaintiff's peril, and (4) that defendant then had a clear chance, by the exercise of ordinary care, to avoid the injury, and that he failed to do so. Palmer v. Tschudy, 191 Cal. 696, 218 P. 36; Bence v. Teddy Taxi Co., 112 Cal.App. 636, 297 P. 128.

A review of the facts is necessary. The deceased was riding in a borrow pit on the south side of the highway, traveling in an easterly direction. The defendant also was driving in an easterly direction, at a speed of 30 to 35 miles per hour. About the time the defendant passed the filling station, and about 35 feet before he had overtaken the horse and its rider, the horse began to buck. It bucked out of the borrow pit onto the highway. The defendant, becoming aware of the deceased's perilous position, immediately applied his brakes, and at the same time swerved the automobile abruptly to the left, or north side of the highway. The horse continued bucking in the direction of the defendant's on-coming automobile, and bucked into the automobile at about the center of the black top, or the middle of the highway. The force of the impact dentedthe right front fender, the right door, and broke the glass out of the right front door. Defendant's car came to a stop about 20 or 30 feet east of the impact on the north side and parallel to the highway, with both left wheels off the black top.

It is further shown in evidence that the widow of the deceased, an eyewitness to the accident, immediately thereafter stated that the defendant pulled to the left and tried very hard to get out of the way of the horse; that the defendant did everything he could to avoid being hit by the horse, and that she was afraid that the defendant was going to turn his car over or wreck it in trying to get out of the way of the horse.

From a consideration of this evidence, it clearly appears that an issue on the last clear chance doctrine is not presented. The law does not require a defendantto exercise a greater care than that required of plaintiff for his own safety. Nevertheless, the evidence shows that the defendant exercised more than ordinary care, yet failed to avoid the injury. Consequently, the fourth element, as a basis of the doctrine is absent.

In his brief, the plaintiff quotes what he says is the testimony of the defendant to support his claim that he was entitled to an instruction submitting the issue of the last clear chance doctrine to the jury, as follows: 'A. I could have stopped my car within 50 feet.

'Q. As I understand it, you were approximately at the west edge of this driveway, proceeding east, at the time when you saw the horse start to buck and pitch onto the highway? A. Yes.

* * *

'A. Between the west edge of the east driveway and where this horse is located on the highway would be within 5% of 168 feet and 9 inches.' (Our italics).

'Q. This horse appeared out of control, did it, Doctor? A. Yes, sir.'

An examination of the record discloses that the answer underscored was not given by the defendant, but was a part of the testimony of Sterling Floeck, a brother of the deceased, given for the plaintiff in rebuttal, when he was testifying as an expert insurance adjuster. He was giving his opinion as to the location of the collision with relation to the filling station. He based his testimony on a posed photograph taken with the camera parallel with the road and a map drawn to scale which was not admitted in evidence. The defendant questioned the probative value of the testimony based on such a picture at the time. It is stated in Scott, 'Photographic evidence', Sec. 87, p. 92: 'When it is desired to show the distance between two objects in a scene, the ideal camera position is one on a line perpendicular to an imaginary line drawn between the important objects.'

At 20 Am.Jur. 'Evidence', Sec. 727, it is stated: 'A photograph cannot be relied on as proof in itself of the dimensions of the depicted object or objects, and cannot be made properly available to establish the relative proportions of such object or objects except by evidence of the personal knowledge or scientific experience to demonstrate accurately the facts sought to be established.'

But we do not need to resort to the books to learn of the unreliable nature of such testimony. We turn to his own testimony on the plaintiff's case in chief of his on-the-spot investigation made two days after the accident when the tire marks and blood stains were plainly visible. We quote therefrom as follows: 'It was on the morning before the funeral about 9 or 10 o'clock. I have visited many such scenes in my occupation and as I went out there I took note of a great many things I guess the ordinary person wouldn't notice, * * * When I went out there, on arriving there, I saw a heavy spot of blood on the south side of the pavement. It was a very large spot. It was obvious that it was the blood of the horse. There was too much blood for a man. There was another spot up in the pavement near what would have been a center line of the pavement, had the pavement been lined, near the center of the pavement. Then just a few fee, 10 or possibly 12 feet to the west of that there were two black marks on the pavement. They started close together and as they cut across toward the north or northeast they became separated by about 28 or 30 inches and they came closer together as they went off the pavement on the north side of the road. Those marks could be less visibly traced off the shoulder of the road, which was about 32...