Garcia v. Sanchez

• Decision Date: 12 June 1961
• Docket Number: No. 6711,6711
• Citation: 1961 NMSC 75,362 P.2d 779,68 N.M. 394
• Parties: Agapito B. GARCIA, Plaintiff-Appellee v. Gregorio SANCHEZ, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 779

362 P.2d 779

68 N.M. 394

Agapito B. GARCIA, Plaintiff-Appellee v. Gregorio SANCHEZ, Defendant-Appellant.

No. 6711.

Supreme Court of New Mexico.

June 12, 1961.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellant.

Chavez & Cowper, P. Pablo Marshall, Belen, for appellee.

CHAVEZ, Justice.

This is a suit for damages sustained by plaintiff, appellee herein, when struck by appellant's automobile, while plaintiff was walking across the street or Highway 85 within the corporate limits of Belen, New Mexico. The jury found for plaintiff and judgment was entered accordingly. Defendant seeks a reversal of said judgment. The parties will be designated as they appeared in the court below.

Plaintiff and his wife live in their tourist court located on the west side of the street or Highway 85 which runs from north to south through Belen. On the evening of September 4, 1957, at approximately 7:40 P. M., plaintiff, clad in a white undershirt and black trousers, went to call his wife who was then across the street in front of the home of Mrs. Willie Rivera. The street or highway is black-topped, 23 feet wide, with a white centerline marking. There are businesses and houses on both sides of the street in the neighborhood and vicinity of the scene of the accident. A street light is located just south of Mrs. Rivera's home and she had her porch lights on. There was also a light at plaintiff's tourist court and the lighting was good on the street. It was not dark but was getting dark. The accident did not occur on a crosswalk or intersection.

The evidence is in conflict as to the speed of defendant's car. Plaintiff's evidence indicates that defendant was driving from 40 to 45 miles per hour and that he did not decrease his speed from the time he was first seen to the point of impact, and if he did decrease his speed it was very slightly. Defendant's evidence is that his speed was only 25 or 30 miles per hour. The speed limit at the point of impact was 35 miles per hour. The road at the point of impact is straight for a distance of 150 yards to the north, whereupon it curves. Plaintiff's witnesses testified that at the time plaintiff was struck he was on the east side of the highway. Defendant could see from 100 to 150 feet ahead; he had his headlights dimmed, and he did not apply his brakes or sound his horn. He did not see plaintiff until he was very close to him, approximately five feet.

Plaintiff testified that he came out of his tourist court going east and that when he was about to cross the road he stood at the end of a fence which is west of the highway, in order to allow two or three cars to pass. The cars were going in a southerly direction. There was no traffic from south to north. Plaintiff then looked north and south and, seeing no traffic coming, started to cross the road walking normally. When he crossed the white centerline defendant's car struck him. He did not see the car until it struck him.

Defendant, who was driving in a southerly direction on said highway, testified that he was driving at a speed of approximately 25 or 30 miles per hour, his lights were on dim and he did not see plaintiff until he was very close to him, approximately five feet in front of his car. He tried to miss him by turning to the right. When defendant was asked to describe what plaintiff was doing when he first saw him he answered:

'I can't describe what he was doing, he just happened to approach in my vision, my vision was on the on-coming cars at all times and that is my habit of driving.'

Defendant could not see whether plaintiff was walking or running. There is also testimony that at the time defendant's car struck plaintiff two of the wheels of defendant's car were on each side of the centerline.

Defendant claims that the court erred in refusing to direct a verdict for defendant, or in the alternative, in refusing to enter judgment for defendant non obstante veredicto.

Defendant relies upon Button v. Metz, 66 N.M. 485, 349 P.2d 1047, as well as Sandoval v. Brown, 66 N.M. 235, 346 P.2d 551. Button v. Metz, supra, was an action for personal injuries sustained by a pedestrian when he was struck in a parking lot by defendant's backing automobile. At the close of plaintiff's evidence, defendant moved and the trial court directed the jury to find for the defendant, stating that plaintiff had not carried the burden of proof; that plaintiff had not proved his case by a preponderance of the evidence and had not proved any negligence on the part of the defendant. The trial court also remarked that appellant was guilty of contributory negligence as a matter of law. Defendant, in the case before us, also argues that plaintiff failed in his burden of proof as a matter of law that defendant was negligent, and claims further that if defendant was negligent it was not the proximate cause of the accident.

In Button v. Metz, supra, we said:

'In disposing of a motion for a directed verdict at the conclusion of the plaintiff's testimony, the first question to be resolved is whether the plaintiff has made out a prima facie case of negligence against the defendant, not whether he has proved negligence by a preponderance of the evidence. And in resolving this issue, all evidence and all reasonable inferences therefrom which tend to prove the plaintiff's case of primary negligence against the defendant must be accepted as true. All evidence which tends to weaken or disprove it must be disregarded. Ferris v. Thomas Drilling Co., 62 N.M. 283, 309 P.2d 225; Smith v. Ferguson Trucking Co., 58 N.M. 779, 276 P.2d 911; Thompson v. Dale, 59 N.M. 290, 283 P.2d 623.' [66 N.M. 485, 349 P.2d 1049.]

We further held that the proof offered was sufficient to make the issue of appellee's negligence one for the jury, stating:

'* * * A motorist must exercise care commensurate with the situation confronting him. * * *

'Reasonable men might well conclude that under the facts of this case the failure to give any warning signal was negligence on the part of appellee. Further, the evidence establishes that during at least a part of the time appellee was backing his vehicle, he was looking at his right front fender rather than in his rear view mirror to see if anyone was behind his automobile.'

We then laid down the rule as follows:

'* * * 'Once it is determined that reasonable men may differ as to whether a fact has been proved, the probative value of the evidence, and the conclusion to be drawn from it, lies in the hands of the jury.' * * *.

'* * * Again the rule of law is to the effect that only when reasonable minds cannot differ on the question and readily reach the conclusion that the plaintiff was contributorily negligent, and that his negligence proximately contributed with that of the defendant in causing the injury, that the issue of contributory negligence may be determined as a matter of law. Sandoval v. Brown, 66 N.M. 235, 346 P.2d 551; Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507.'

The trial judge, who refused to direct a verdict for the defendant, evidently felt that reasonable men might differ on the question of defendant's negligence, and once that was determined the matter became one for the jury to decide. Reasonable men might differ as to whether defendant failed to keep a proper lookout, or keep his automobile under proper control, and whether he exercised the care and caution commensurate with the situation confronting him. This is particularly true when we consider that defendant was driving within the corporate limits of Belen, on the main thoroughfare and in an area where there are businesses and homes on both sides of the street or highway. The time that the accident occurred and the period of the year must also be considered. Reasonable minds might differ as to whether defendant's failure to apply his brakes and sound his horn was negligence on his part. We cannot say that under the facts of the case before us that the trial court committed error under this point.

Under point II error is claimed for the failure of the trial court to direct a verdict for defendant on the ground that plaintiff's own negligence contributed to the accident.

Defendant cites Sandoval v. Brown, 66 N.M. 235, 346 P.2d 551, 554, wherein we affirmed the action of the district court in instructing the jury to return a verdict for defendant at the close of plaintiff's case on the ground that the defendant was guilty of contributory negligence. In Sandoval v. Brown, supra, we quoted from Gray v. Esslinger, 46 N.M. 421, 130 P.2d 24, as follows:

'We are not unmindful of the prevailing rule that plaintiff's contributory negligence, if any, ordinarily is a question for the jury. Notwithstanding this general rule, however, where reasonable minds cannot differ upon the question and they come readily to the conclusion that the plaintiff was negligent and that his negligence contributed proximately with that of defendant to cause the injury complained of, it should be so declared as a matter of law. * * *'

Under the facts in Sandoval v. Brown, supra, we properly stated:

'* * * it is difficult to see how anyone can claim freedom from negligence or that such act did not contribute proximately to his injuries when he steps out into a street in front of two cars approaching so closely that he is attempting to cross in the light thrown by the cars, and at the same time is giving attention to another car parked some distance ahead, and then when aware that the cars are upon him stops in the lane of travel of these cars and is thereupon struck by one of them.'

The facts in the case before us are distinguishable from the facts in Sandoval v. Brown, supra. We believe that the facts in the case before us are similar to the facts in Terry v. Bisswell, 64 N.M. 153, 326 P.2d 89, 92, wherein we quoted from Williams v. Haas, 52 N.M. 9, 189 P.2d 632, as follows:

'Whether the plaintiff has been guilty of contributory negligence barring a...