Gray v. Esslinger
| Decision Date | 22 September 1942 |
| Docket Number | 4703. |
| Citation | 130 P.2d 24,46 N.M. 421,1942 -NMSC- 052 |
| Parties | GRAY v. ESSLINGER. |
| Court | New Mexico Supreme Court |
Rehearing Denied Nov. 6, 1942.
Second Motion for Rehearing Denied Dec. 31, 1942.
See 131 P.2d 981.
Appeal from District Court, Dona Ana County; Numa C. Frenger, Judge.
Action by Dave E. Gray, administrator of the estate of Louis Linton Gray, deceased, against Bill Esslinger for the death of the decedent resulting when decedent was struck by defendant's automobile while crossing a street. From a judgment for defendant upon a directed verdict, plaintiff appeals.
Reversed and remanded with directions.
Newell & Scoggin, of Las Cruces, for appellant.
Whatley & Garland, of Las Cruces, for appellee.
The plaintiff as administrator of the estate of his deceased brother, Louis Linton Gray, appeals from a judgment of the district court of Dona Ana County entered on an instructed verdict for the defendant. As appellant, the plaintiff assigns a single error, namely, that the court erred in sustaining defendant's motion for an instructed verdict interposed at the close of plaintiff's case in chief. Under this claim of error, he argues two points, (1) that when reasonable minds may differ on the issue of contributory negligence, the matter is issuable and must be submitted to the jury; and (2) that if the defendant's negligence approaches wantonness by showing reckless disregard of human life, contributory negligence constitutes no defense. Since either point, if well taken, renders erroneous the action of the trial court in instructing a verdict for defendant and the first, certainly, and the second, contingently, will involve an analysis of the plaintiff's evidence, we turn at once to its examination.
The decedent, a resident of El Paso, Texas, who followed the trade of manufacturing jeweler, engraver and watch repairer came into the small village of Mesquite in Dona Ana County from the nearby settlement of San Miguel around 4 o'clock on the afternoon of June 21, 1941. Mesquite is located on highway No. 85 extending through the village from north to south, being the principal thoroughfare between Las Cruces New Mexico, and El Paso, Texas.
The business houses of Mesquite all are located on the east side of the highway facing west and paralleling the right of way of the railroad between Las Cruces and El Paso. The southbound bus from Las Cruces to El Paso is due in Mesquite about 8:30 o'clock in the evening. The decedent planned to board this bus for El Paso at 8:30 o'clock, if in the meantime he should not succeed in getting a ride to his destination with some passing motorist. Accordingly, he spent the intervening time walking up and down the row of business houses inquiring for motorists going his way and stopping occasionally to visit with some local business man or loiterer.
In the course of his stay in Mesquite, the decedent passed the tavern of Frank Parra two or three times, sometimes pausing to engage in conversation with the proprietor if he chanced to be near the front of his establishment. It was not until 8 o'clock in the evening, however, that he entered the tavern. He then complained of a disordered stomach and purchased a small glass of wine in the expectation of getting relief from drinking it. He sat on a stool near the bar sipping the wine and visiting with the proprietor for nearly half an hour. Indeed, he had consumed the first glass of wine and had ordered the second and had partly consumed it, when the proprietor suddenly cried out: "There goes the bus!"
The highway through Mesquite is 41 feet in width and is paved with asphalt. The bus stop is located south of Parra's tavern, directly opposite and across the street from Ripley's Cafe, that is to say, the bus ordinarily comes to a stop on the west side of the highway as it did on the occasion in question. There is no bus depot or station house at Mesquite.
Upon hearing Parra's exclamation, the decedent hurriedly left the stool on which he was sitting and rushed through the front door, running south paralleling the highway, but remaining just off the paving until he passed the second light pole located on the east side of the highway. From the time he ran out of the building until he reached the second light pole the headlights of a closely approaching automobile coming in from the south were plainly visible. The highway extends in a straight line for approximately two miles south of Mesquite and continues in a straight line north for a considerable distance. The view is unobstructed in either direction.
Perhaps not sensing either the speed or the nearness of the approaching car, the decedent, after hesitating momentarily at the second light pole, ran directly into the path of the on-coming car and, upon reaching approximately the center of the highway, was struck by it and instantly killed.
Mrs Frank Parra, wife of the proprietor of the tavern, was an eye witness to this unfortunate tragedy and, as a witness for the plaintiff, gave in evidence the following account thereof, to-wit:
The body of decedent was either hurled by the impact or carried on the hood of the car a distance of approximately one hundred feet from the point where struck and deposited on the west side of the highway just off the paving.
The defendant was the driver of the Buick sedan which struck decedent and according to the testimony of several witnesses was traveling at an excessive speed. Estimates of the rate varied from the highest given of seventy miles an hour to that admitted by defendant of 50 to 55 miles per hour. Skid marks of the tires on the paving were clearly visible for a distance of one hundred forty-six feet from the point where the brakes were first applied to the point where the car came to a stop with rear wheels on the edge of paving and front wheels off the paving, facing in a southeasterly direction, almost directly opposite that in which it had been traveling.
The light pole, slightly beyond which point the decedent turned to cross the highway, is located near the northwest corner of the building occupied by and known as Ripley's Cafe. The decedent proceeded in a diagonal and southwesterly direction across the highway toward the bus. It was parked on the opposite side of the highway in a southwesterly direction from the point at which decedent turned to cross over. The brakes were first applied, as indicated by skid marks on the paving, directly in front of Ripley's Cafe.
Captain Carlos Salas of the State Police arrived at the scene shortly after the accident. He testified as a witness for plaintiff. The distance the car skidded, previously stated as one hundred forty-six feet, is based on measurements made by Captain Salas. He found the brakes on defendant's car in good condition and the paving was dry.
According to tables of the National Safety Council based on experience and given in evidence by Captain Salas, a car driven at 60 miles an hour will travel 80 feet per second. Driven 20 miles per hour, it will travel 29 feet per second. The "thinking distance" of the average motorist after seeing some object--the time within which it takes him to react by lifting his foot from the accelerator and applying it to the pedal of the brakes--is 3/4 of a second, according to data in tables of National Safety Council. Thus, according to the testimony of Captain Salas, a driver traveling 60 miles per hour and reacting in 3/4 of a second to some object coming within his vision, would travel 66 feet before applying the brakes.
When the plaintiff had rested, after producing testimony of which the foregoing is a fair...
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