Gutierrez v. Koury, 5657

• Citation: 1953 NMSC 109,263 P.2d 557,57 N.M. 741
• Decision Date: 19 November 1953
• Docket Number: No. 5657,5657
• Parties: GUTIERREZ et al. v. KOURY.
• Court: Supreme Court of New Mexico

Page 557

263 P.2d 557

57 N.M. 741

GUTIERREZ et al. v. KOURY.

No. 5657.

Supreme Court of New Mexico.

Nov. 19, 1953.

McAtee & Toulouse, Albuquerque, for appellant.

Gilberto Espinosa, Albuquerque, for appellees.

LUJAN, Justice.

This is an appeal from a judgment awarding damages to each of the three named plaintiffs for personal injuries occasioned by the collision of a passenger motor vehicle, in which plaintiffs were riding, with the rear end of a truck owned and operated by the defendant. The collision, resulting in the damages complained of, took place, at approximately 10:15 o'clock on the evening of May 11, 1952, on U. S. Highway 85, at a point about 300 feet from where North Second Street enters the above highway. U. S. 85 is a paved four-lane highway, 40 feet in width, perfectly level and runs in a northerly and southerly direction at the place of impact.

The evidence shows that the truck was parked on the outer lane of said highway with no lights burning at the time, as testified to by plaintiff, Leo A. Gutierrez and the defendant; and that said plaintiff was driving his automobile with dimmer lights burning which lights enabled him to see 75 feet straight ahead. The plaintiff testified substantially as follows: That he was returning to his home, with his family, in Bernalillo from Albuquerque where he had gone to take a friend and his family; that the night was pretty dark; that he was traveling on the outer lane of the highway at approximately 40 to 45 miles per hour; that he was driving with dim lights on; that after he passed the Sandia filling station he had traveled about 300 feet when he collided with defendant's truck which was parked on the outer lane of the highway with no lights burning; that he first noticed the truck when he was from 25 to 50 feet away from it; that he then swerved to his left in an effort to avoid hitting it; that the right front of his car hit the rear left end of the truck.

The defendant testified substantially as follows: That he was returning to his home in Bernalillo from Albuquerque where he had gone to purchase some merchandise; that on his way home his one-half ton truck developed ignition trouble and stalled on the outer lane of the highway approximately 300 feet from the Sandia filling station: that his lights went out; that he tried five or six times to get the truck started but was unable to do so; that he then stood behind the truck and tried to flag five cars to stop but without success; that he then left the truck where it stalled and went back to the filling station to get help; and that while there the plaintiffs' car collided with the rear end of his truck.

The cause was tried to the court without the aid of a jury. It resolved the issues in favor of plaintiffs and defendant appeals.

The court found:

'1. On May 11, 1952, Plaintiff Leo Gutierrez was driving his personally owned 1939 Dodge Two Door Sedan in a northerly direction on U. S. Highway 85 at approximately the hour of 10:15 P. M. He was traveling at a rate of speed wthin the allowable velocity on said highway and with his car lights burning and in a careful manner and without negligence. Plaintiffs Pedro Gutierrez a minor and Filia Gutierrez were passengers in said car.

'2. That prior to the accident which occurred, defendant Richard Koury had been driving his personally owned Chevrolet half Ton Truck on U. S. Highway 85, in a northerly direction; that said truck had stalled at a point approximately three hundred yards north of the intersection of North Second Street and U. S. Highway 85; that defendant left said truck parked in the outside lane of said Highway with the lights of the car not burning and without flares or other lights to warn other motorists while he went for assistance.

'3. That plaintiff was without negligence on his part.'

The court concluded as a matter of law:

'2. The accident involved in this case was caused solely by the negligence of the defendant n leaving his truck on the highway without flares or other lights to warn other motorists.'

Defendant contends that he was not negligent for leaving his disabled truck on the paved portion of the highway, because exempt under Section 68-523(c) of 1941 Compilation. We are unable to agree with this contention. This section provides:

'(a) No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of said highway * * *. (Emphasis ours.)

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'(c) The provisions of this section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such vehicle in such position.' (Emphasis ours.)

There was nothing about the physical condition of the highway to prevent or render impracticable driving the truck off of the paved portion of the highway unto the side of such highway. It was perfectly level at this point. The truck was not disabled in such manner and to such extent, at the time it began chugging, that it was impossible to avoid stopping and temporarily leaving it in such position. See Duncan v. Madrid, 44 N.M. 249, 101 P.2d 382. From defendant's own testimony it appears that he had ample time within which to steer his truck clear from the highway had he exercised due diligence. He testified:

'Q. When did you know your truck was going to stop in the highway? A. About twelve feet from where I stopped. The car was beginning to act, you know, not natural like, chugging, and all of a sudden it stopped.'

Having had the opportunity to steer his truck to the side of the highway when it began chugging, the statute imposed upon him the duty of so doing. Duncan v. Madrid, supra. It was this negligence of the defendant, and not any impracticability of driving off of the lane of traffic and stopping his truck as he did, that caused it to stop on the paved portion of the highway.

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