Gould v. Brown Const. Co.

• Court: New Mexico Supreme Court
• Writing for the Court: CARMODY
• Citation: Gould v. Brown Const. Co., 401 P.2d 100, 75 N.M. 113, 1965 NMSC 39 (N.M. 1965)
• Decision Date: 12 April 1965
• Docket Number: No. 7517,7517
• Parties: Joseph E. GOULD and Phyliss G. Gould, his wife, Plaintiffs-Appellants, v. BROWN CONSTRUCTION COMPANY, a corporation, and Bynard Fox, Defendants-Appellees.

Page 100

401 P.2d 100

75 N.M. 113

Joseph E. GOULD and Phyliss G. Gould, his wife Plaintiffs-Appellants, v. BROWN CONSTRUCTION COMPANY, a corporation, and Bynard Fox Defendants-Appellees.

No. 7517.

Supreme Court of New Mexico.

April 12, 1965.

Garland & Martin, Las Cruces, I. M. Smalley, Deming, for appellants.

Ray Hughes, Benjamin M. Sherman, Deming, for appellees.

CARMODY, Chief Justice.

Plaintiffs appeal from an adverse jury verdict in a damage action arising out of a collision which occurred during a dust storm.

The defendant Fox was an employee of the defendant construction company, and on the day in question was driving his vehicle easterly from Deming, New Mexico. At serveral places along the highway, there were dust-cloud formations which rendered driving difficult. As Fox proceeded, he saw the particular dust cloud from about a half mile away and drove into it at a speed of approximately twenty-five miles per hour. According to his testimony, he thought he could see 100 to 200 feet into the dust cloud before he entered it, but when he actually drove into the dust cloud, it closed in like a curtain and he struck the rear of plaintiffs' car. The plaintiffs' automobile had been procceding in the same direction as Fox, either at a very slow rate of speed or was perhaps stopped, because there was evidence that a house trailer which plaintiffs had been following stopped in front of their automobile. The force of the collision drove the plaintiffs' car into a vehicle in the oncoming lane and both plaintiffs were severely injured.

Plaintiffs rely for reversal on what are termed fourteen different points. Each point is an attack upon the claimed error on the part of the court in giving certain instructions, and the refusal of the court to give other instructions requested by the plaintiffs.

Although not specifically stated in each of the points, the underlying error urged is that there was no substantial evidence justifying the giving of instructions on contributory negligence, unavoidable accident, sudden emergency, and the instruction on the effect of the violation of Sec. 64-18-49, N.M.S.A.1953, which concerns the stopping or parking of a vehicle upon the traveled part of a highway when it is practical to do otherwise.

We approach the issues, bearing in mind, among others, the various rules of appellate procedure having to do with the conclusiveness of the verdict if based upon substantial evidence, Viramontes v. Fox, 1959, 65 N.M. 275, 335 P.2d 1071; Johnson v. Nickels, 1959, 66 N.M. 181, 344 P.2d 697; Romero v. H. A. Lott, Inc., 1962, 70 N.M. 40, 369 P.2d 777; and Hamilton v. Doty, 1963, 71 N.M. 422, 379 P.2d 69; the duty of the trial court to properly instruct the jury, Gallegos v. McKee, 1962, 69 N.M. 443, 367 P.2d 934; and the fact that the trial court had the opportunity not only of passing on the instructions originally, but thereafter approving the same and the verdict in denying a motion for new trial. Compare Reck v. Robert E. McKee General Contractors, 1955, 59 N.M. 492, 287 P.2d 61.

In the last analysis, the problem is whether or not there was any substantial evidence, or a reasonable inference from the evidence adduced, from which it could be determined that the plaintiff, Mrs. Gould, had stopped her automobile on the highway. In considering this question, we, of course, under our authorities, must view the evidence in the light most favorable to the appellee. The record would indicate that the plaintiff, Mrs. Gould, testified that her car was not stopped prior to the collision, but she also testified that she was following closely behind a large white house trailer at a distance of some twenty or thirty yeards. The defendant Fox testified that he did not know whether the plaintiff's car was stopped or not at the time he struck it, but that it appeared that it was stopped. The operator of the car in the opposite lane testified to the effect that, because of the dust, he stopped at the rear end of the house trailer prior to the accident and that the house trailer was stopped for 'minutes and seconds.' There is also evidence that, after the accident, the trailer was stopped on the highway and had to be removed by a wrecker.

The trial court, in giving the instructions, particularly as to contributory negligence and the effect of the violation of the statute, felt that it was a jury question as to whether Mrs. Gould had stopped on the highway and whether or not it was practical for her to drive off the highway. It would seem that if the plaintiffs were following the house trailer at the distance stated, and there was evidence that the house trailer was stopped for an unknown length of time, then it logically follows that there was a question of fact as to whether Mrs. Gould was or was not stopped. If the jury, under all of the evidence, could have determined that she was stopped on the highway, then it was only proper for the court to do as he did, i.e., instruct the jury as to the statute prohibiting stopping on the highway and its effect. Under the instructions, the jury was also told to determine whether such stopping, if it did occur, was negligence under the circumstances of the case. These were all questions which were submitted to the jury, and, whether based upon these or other considerations, they, in their judgment, returned a verdict in favor of the defendants.

The jury had before it all of the facts which are available to us in the form of the typewritten record, including the uncontroverted testimony by both of the plaintiffs that they were totally unfamiliar with the road; that for several miles Mrs. Gould had followed the trailer because it...