GRIEGO v. CONWELL

• Decision Date: 20 September 1950
• Docket Number: No. 5290,5290
• Citation: 54 N.M. 287,222 P.2d 606
• Parties: GRIEGO v. CONWELL et al.
• Court: New Mexico Supreme Court

54 N.M. 287

222 P.2d 606

GRIEGO

v.CONWELL et al.

No. 5290.

Supreme Court of New Mexico.

Sept. 20, 1950.

[222 P.2d 606, 54 N.M. 288]

W. A. Keleher, A. H. McLeod, Albuquerque, Gilbert & Gilbert, Santa Fe, for appellants.

Rodey, Dickason & Sloan, Frank M. Mims, Jackson G. Akin, Gino J. Matteucci, all of Albuquerque, for appellee.

McGHEE, Justice.

This case was brought under the wrongful death statute, 1941 Comp. § 24-101 et seq., by the widow of Jose M. Griego, who it was claimed died as a result of the negligent operation of an automobile by the appellant Erle M. Conwell while acting in the course of his employment for his co-appellant, Public Service Company of New Mexico. The case was submitted to a jury which returned a verdict for the appellee (plaintiff below) for $15,000. A motion for a new trial was overruled, whereupon judgmentwas entered in accordance with the verdict.

In this court the appellants admit that Conwell was negligent but say that the deceased was guilty of contributory negligence as a matter of law, and that the trial court erred in denying their various motions seeking a directed verdict on that ground.

Griego was employed at the Santa Fe Shops and had quit work at 11:00 P.M. He then washed and changed clothes, which usually required from ten to fifteen minutes. The accident occurred shortly before midnight. Griego had parked his car on the right-hand side of the blacktop withthe headlights burning. The center line of the blacktop was not marked. One witness testified that the left-hand side of the car was approximately three feet from the center line while another put it at or very near the center.

Conwell and his wife had attended a cocktail party to La Fonda in Santa Fe from 7:30 to 8:30 P.M., and had then eaten at a banquet in the same city. They left for Albuquerque at about 10:30 or 10:45 P.M. Conwell testified that as he approached the place of the accident he saw that the Griego car was parked; that he was blinded by its lights, and as he ran through these lights he saw Griego in the road but that he could then not avoid striking him. Griego's body was found about 36 feet south and east of his car. A flashlight was found near the body. The left front fender and the radiator of the Conwell car were crushed backward, and testimony was given that there was a fresh dent or mark on the left rear fender of the Griego car that was not there before he drove the car to work that afternoon.

Tests for alcohol were made of blood taken from Conwell and the Griego body within a little more than an hour after the accident. The tests showed Conwell's blood to be free of alcohol but Griego's blood showed 160 milligrams of alcohol, ten more than enough to show intoxication. Conwell admitted that he drank three highballs at the cocktail party and the medical testimony was to the effect that while there are exceptions in individuals, ordinarily it takes from ten to twelve hours for alcohol to leave the bloodstream of a person.

We begin the consideration of the issue of contributory negligence mindful of the rule of law that in such a case as this the diligence and due care of the deceased is presumed, and a verdict cannot be directed against his representative on this issue unless reasonable men could not differ in finding him contributorily negligent. Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540, Padilla v. Atchison, T. & S. F. Ry. Co., 16 N.M. 576, 120 P. 724, and Russell v. Davis, 38 N.M. 533, 37 P.2d 536.

The evidence is undisputed that Griego parked his car on the blacktop and as we look at the facts in the most favorable light in support of the verdict, it should be placed with its left side at approximately three feet to the right of the center of the pavement. The evidence is undisputed that the right shoulder of the road was smooth and wide enough to have accommodated his car. In addition, we have undisputed testimony that a deputy sheriff started the motor without difficulty and drove the car to the courthouse. These facts establish a violation of Sec. 68-523, 1941 Comp., and as held by this court in Duncan v. Madrid, 44 N.M. 249, 101 P.2d 382, andHisaw v. Hendrix, 54 N.M. 119, 215 P.2d 598, constitute negligence per se, if the car was not disabled when it stopped.

There is a distinction between this case and the Madrid and Hisaw cases. There the cars blocked the side of the road on which the injured parties were traveling and in each case one driving on the same side of the road ran into them. In the Madrid case the stopped motor vehicle was without lights, while in the Hisaw case a car on the side of the road blinded the driver of the Hisaw car until too late for him to avoid striking the Hendrix car. Here the entire side of the road on which Conwell was driving was clear and there was ample room for him to pass, and he had actually seen the lights of the Griego car for some distance.

The jury was fully instructed on this feature of the case by the trial court.By its verdict it had to find that the stopping of the car on the pavement did not proximately contribute to the accident, and we are unable to say as a matter of law that such finding was unwarranted. Olguin v. Thygesen, 47 N.M. 377, 143 P.2d 585.

The appellants strenously insist that under instruction No. 25 given by the court they are...