Galvan v. City of Albuquerque, No. 963

• Docket Nº: No. 963
• Citation: 508 P.2d 1339, 1973 NMCA 49, 85 N.M. 42
• Case Date: March 23, 1973

Page 1339

508 P.2d 1339 85 N.M. 42 Robert G. GALVAN, Plaintiff-Appellant,
v.
CITY OF ALBUQUERQUE, a municipality duly incorporated under
the laws of the State of New Mexico, and Gregory
F. Avila, Defendants-Appellees. No. 963. Court of Appeals of New Mexico. March 23, 1973.

[85 N.M. 44]

Page 1341

E. Douglas Latimer, Marchiondo & Berry, Albuquerque, for appellant.

James C. Ritchie, Stuart S. Keown, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for appellees.

OPINION

WOOD, Chief Judge.

, a car-bicycle collision occurred on a two-lane section of Montgomery Street in Albuquerque. Plaintiff sued Avila, the police officer driver of the car, and his employer, the City of Albuquerque. The trial court first dismissed the City and then granted summary judgment in favor of Avila. The issues are: (1) sufficiency of an affidavit; (2) proximate cause; (3) wilful and wanton conduct; and (4) propriety of dismissing the City.

Sufficiency of an affidavit.

Plaintiff submitted an affidavit in opposition to Avila's motion for summary judgment. We cannot tell from the record whether the trial court considered this affidavit in granting the summary judgment. Plaintiff asserts a factual issue as to proximate cause is raised by the affidavit. Avila asserts the affidavit was not entitled to consideration.

The affidavit of Gale W. Smith states his experience as a police officer and the experience of Albert Leroy as a police officer. The affidavit states that both Smith and Leroy have formed an 'expert opinion' adn that Leroy's opinion supports the opinion of Smith. Smith concludes that Avila was going not less than 70 miles per hour when Avila applied his brakes. We assume, but do not decide, that this conclusion as to speed was material to the question of proximate cause. We also assume, but do not decide, that Smith was competent to testify on the matters stated in the affidavit.

The affidavit states:

'That I have performed tests for the purpose of ascertaining the speed of the vehicle driven by defendant Avila . . . with the assistance of Officer Albert Leroy and such tests were made in a manner to reliably ascertain the actual speed of the vehicle being driven by defendant Avila on the date of the accident.'

Section 21--1--1(56)(e), N.M.S.A.1953 (Repl.Vol. 4) states that affidavits '. . . shall set forth such facts as would be admissible in evidence. . . .' An expert witness must be able to give a satisfactory explanation as to how he arrives[85 N.M. 45]

Page 1342

at his opinion. Dahl v. Turner, 80 N.M. 564, 458 P.2d 816, 39 A.L.R.3d 207 (Ct.App.1969). Without such an explanation the opinion is not competent evidence. City of Albuquerque v. Chapman, 76 N.M. 162, 413 P.2d 204 (1966); Landers v. Atchison, Topeka & Santa Fe Railway Co., 68 N.M. 130, 359 P.2d 522 (1961).

The affidavit does not identify the tests performed and does not explain how the tests were performed. There is no satisfactory explanation of the conclusion as to speed. The affidavit did not set forth facts admissible in evidence and was not entitled to consideration. Smith v. Klebanoff, 84 N.M. 50, 499 P.2d 368 (Ct.App.1972).

Proximate cause.

Avila was driving east on his way to check a car with improper license plates. It was not an emergency situation and he was not using his emergency equipment. Sections 64--14--4 and 64--15--5, N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 2). He came up behind a vehicle driven by Stanford, also headed east. Avila pulled out to pass. He was engaged in this passing situation when his car, and the bicycle ridden by plaintiff, collided. Plaintiff had been riding the bicycle in the westbound lane of traffic.

The accident happened at night in an area where there were no lights or other artificial illumination. The bicycle was without lights. Plaintiff was violating § 64--19--7, N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 2) which, in this case, required '. . . a white light visible from a distance of at least 500 feet to the front. . . .'

In pulling out to pass, Avila drove across a double yellow line. We assume he was passing in a no-passing zone. See § 64--18--14, N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 2). There is deposition testimony that the speed limit was 40 miles per hour and that Avila was driving 40 to 45 miles per hour when he undertook to overtake Stanford. See § 64--18--2.1, N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 2).

In addition to the statutory violations, the briefs argue violations of Albuquerque ordinances. The ordinances are not a part of the record and will not be considered. The statutory violations were negligence per se. McKeough v. Ryan, 79 N.M. 520, 445 P.2d 585 (1968); N.M.U.J.I. 11.1.

Summary judgment was granted on the basis that plaintiff was contributorily negligent and this negligence was a proximate cause of the accident as a matter of law. The propriety of this ruling depends on whether 'proximate cause' could be determined as a matter of law.

Where reasonable minds may differ on the question of proximate cause, the matter is to be determined by the fact finder. Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967). Where the facts are not in dispute and the reasonable inferences from those facts are plain and consistent, proximate cause becomes an issue of law. Adamson v. Highland Corporation, 80 N.M. 4, 450 P.2d 442 (Ct.App.1969). Accordingly, we examine the facts as to proximate cause.

The parties agree there were no physical characteristics of the road, such as curves or dips, that would affect one's...