Gallegos v. McKee

• Decision Date: 08 January 1962
• Docket Number: No. 7016,7016
• Parties: Antonio GALLEGOS, Father and Next Friend of Victor Gallegos, a Minor, Plaintiff-Appellant, v. George D. McKEE, and Claude D. Shouse, d/b/a Exchange Auto Parts Co., Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 934

367 P.2d 934

69 N.M. 443

Antonio GALLEGOS, Father and Next Friend of Victor Gallegos, a Minor, Plaintiff-Appellant, v. George D. McKEE, and Claude D. Shouse, d/b/a Exchange Auto

Parts Co., Defendants-Appellees.

No. 7016.

Supreme Court of New Mexico.

Jan. 8, 1962.

Schall & Fowler, Albuquerque, for appellant.

Iden & Johnson, James T. Paulantis, Albuquerque, for appellees.

MOISE, Justice.

This is an appeal from a jury verdict in favor of the defendants-appellees in a case seeking damages for injuries suffered by Victor Gallegos, plaintiff-appellant, a minor four years of age, when struck by a pickup truck being driven by defendant-appellee McKee, and owned by defendant-appellee, Shouse.

McKee was proceeding west on Cochiti Road and was approaching San Pedro Drive in the pickup truck belonging to Shouse. He had applied his brackes preparatory to stopping at San Pedro Drive and was proceeding slowly when he heard a thud and immediately brought his truck to a stop. He got out and looked and found the child, Victor Gallegos, lying on the right side of the truck, some seven feet back from the front of it. He did not see the child at any time before the accident.

At the corner where the accident happened there are some business buildings which stand back some thirty-five feet from the street. These buildings have a four foot sidewalk in front of them and a paved parking area between the sidewalk and the street. There is no marked crosswalk on Cochiti Road. When last seen by any of the witnesses, Victor had been playing on the sidewalk, ahdn when struck he was some thirteen feet out in the street. There is some question in the testimony as to just exactly where he left the curb to go into the street.

Appellant first complains of the court's giving of Instructions 12 and 13, reading as follows:

12. 'While a driver of an automobile across intersections is charged with notice that a pedestrian may have the right of way, and is required to observe reasonable care to accord such to the pedestrian, yet as between intersections the automobile has the right of way and the driver has a right to assume that pedestrians will observe this rule. He is not required to anticipate that a pedestrian will step from the curb or leave the crosswalk and attempt to cross a street between intersections, and a mere failure to anticipate such act upon the part of a pedestrian would not be negligence in a driver unless the driver saw, or in the exercise of reasonable caution should see, a pedestrian attempting to cross between intersections or outside of crosswalks in time to avoid a collision.'

13. 'You are instructed that the statutes of the State of New Mexico pertaining to pedestrians are as follows:

'64-18-33(b) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.

'64-18-34(a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.

'You are further instructed that the defendant, George D. McKee, was not required to anticipate that these statutes would be violated, and a mere failure to anticipate such act upon the part of a pedestrian would not be negligence in driving.'

Appellant's quarrel with the instruction results from the fact that in its instruction No. 10 the court had informed the jury that Victor, because of his age, was incapable of contributory negligence, and then followed with the quoted instruction. It is his position that while stating in instruction 10 that Victor could not be contributorily negligent, in instruction 13 the jury were in effect told that if he suddenly left the curb or place of safety and walked or ran into the path of the vehicle when the same was so close that it was impossible for McKee to yield, or if he was crossing the street at a point other than within a marked crosswalk, or within a marked crosswalk at an intersection and failed to yield the right-of-way to McKee's vehicle he was nevertheless negligent.

We do not so read or understand the instructions. Even a casual reading clearly demonstrates that the court was explaining McKee's duty under the law, in no way suggested that Victor's freedom from contributory negligence was altered thereby.

The same is true of instruction 12 which again states the tandard of care applicable to the driver. Appellant further complains that this instruction should not have been given at all because there was no evidence that the accident happened at any place other than an intersection crossing. We do not so view the proof. As already stated, it is not clear in the evidence as to exactly how far from the corner Victor entered the street. From the evidence reasonable minds might differ as to whether he had come into the street at a place which could be considered an unmarked cross-walk, or so far back from what could be so described as to be between intersections. It is the court's duty to instruct the jury concerning the law applicable to issues of fact raised by the proof. Floeck v. Hoover, 52 N.M. 193, 195 P.2d 86.

Baldwin v. Hosley (Ky.), 328 S.W.2d 426, relied on by appellant does not support his position. It differs from the instant case in that the instruction there stated statutory duties of the child eight years of age in crossing the highway, while no evidence was present to overcome the presumption of no responsibility. Here, as noted, the instruction stated the duty of the driver in the light of the statute--not that of the child, which could not be held negligent under the instructions.

Next, appellant complains of the court's failure to instruct the jury as follows:

'Plaintiff's Requested Instr. No. 5: (Not given) There is, until the contrary is proven, a presumption that the Plaintiff, Victor Gallegos, was exercising due and proper care for the protection of his life at the time of the accident. This presumption arises from the instinct of self-preservation and the disposition of man to avoid personal harm.'

This court has recognized the doctrine of presumption of due care on the part of a deceased person, but has held that once substantial evidence is introduced in a case supporting a contrary finding, the presumption is eliminated as if it had never existed. Hartford Fire Insurance Company v....