Gray v. Esslinger.

• Decision Date: 31 December 1942
• Docket Number: No. 4703.,4703.
• Citation: 46 N.M. 492,131 P.2d 981
• Parties: GRAYv.ESSLINGER.
• Court: New Mexico Supreme Court

46 N.M. 492

131 P.2d 981

GRAY

v.ESSLINGER.

No. 4703.

Supreme Court of New Mexico.

Dec. 31, 1942.

Appeal from District Court, Dona Ana County; Numa C. Frenger, Judge.

On second motion for rehearing.

Second motion for rehearing denied in part.

For former opinion, see 46 N.M. 421, 130 P.2d 24.

Whether the conduct of either a defendant or a plaintiff be of a character to invoke the doctrine that, if conduct of a plaintiff contributing proximately with that of defendant to cause injury is of an aggravating character, it will operate to deny recovery notwithstanding that like misconduct on defendant's part in first instance, but for the aggravating character of plaintiff's own negligence, would have denied defendant benefit of defense of contributory negligence, ordinarily is for jury under proper instructions.

Newell & Scoggin, of Las Cruces, for appellant.

Whatley & Garland, of Las Cruces, for appellee.

SADLER, Justice.

The first motion for rehearing heretofore filed by appellee having been denied, his counsel asked and have been granted leave to file the second motion for rehearing. They complain as follows: “That this Court has wholly failed to pass upon and decide a question fairly raised in and by the appellee's answer brief herein, and again, and in more detail, urged in and by the appellee's Motion for Rehearing, and which is decisive of the case, namely, that if the defendant were guilty of wilful and wanton misconduct in the operation of his automobile at the time of the collision of defendant's automobile with the decedent, then the conduct of the decedent, as established by the plaintiff's own evidence, of necessity constituted wilful and wanton misconduct on his part which contributed to bring about the collision and the resulting injuries to the decedent and which must, according to all respectable authority extant, have barred his recovery; and, if this Court will not clarify its decision in this case, the plea of contributory negligence or of contributory wilful and wanton misconduct or of contributory gross negligence as a defense to a plea of negligence or wilful and wanton misconduct or gross negligence is effectively removed from the practice in New Mexico, and no trial court can ever direct a verdict, regardless of what the testimony may be respecting the plaintiff's guilt of gross negligence or wilful and wanton misconduct.”

The reason we declined to notice this question, little more than mentioned in argument in appellee's brief on original hearing, is that it presents for review no ruling by the trial court. The case never reached the stage of an application of the doctrine in question in its relation to plaintiff because the trial court denied its application in the first instance to defendant. It may have been a part of defendant's strategy at the trial to decline to invoke in his own favor against plaintiff a doctrine which below and here he has denounced so thoroughly as unsound and inapplicable to...