Haire v. Brooks., 4409.
| Decision Date | 27 October 1938 |
| Docket Number | No. 4409.,4409. |
| Citation | 83 P.2d 980,42 N.M. 634 |
| Parties | HAIREv.BROOKS. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dona Ana County; Numa C. Frenger, Judge.
Action by Anna B. Haire, administrator of the estate of Samuel Haire, deceased, against C. L. Brooks to recover damages for the alleged negligent killing of plaintiff's intestate. Judgment for defendant, and plaintiff appeals.
Affirmed.
A motion by defendant for an instructed verdict in his favor requires a determination of whether, considering the testimony of plaintiff, together with all reasonable inferences that could be drawn therefrom, in a light most favorable to him, plaintiff has made a case that would support a judgment.
J. B. Newell, of Las Cruces, for appellant.
W. C. Whatley, of Las Cruces, for appellee.
This is an action to recover damages for the alleged negligent killing of appellant's intestate by defendant, in the operation of his automobile on a public highway in this state.
[1] At the conclusion of appellant's testimony the court sustained a motion of the appellee for an instructed verdict in his favor. This motion called for a declaration of law, viz.: Considering the testimony of plaintiff, together with all reasonable inferences that could be drawn therefrom, in a light most favorable to him; had he made a case that would support a judgment? Silva v. Waldie, 42 N.M. 514, 82 P.2d 282.
[2] The facts and inferences so considered are as follows: The deceased was a child of five years of age, intelligent and in good health and large for his age. The highway, at the point where he was struck by appellee's automobile, was paved and at each side of the pavement there was a margin of crushed stone. From this crushed stone there was a gradual stope to the outer edge of the borrow pit, a distance of about thirty feet. Vehicles could travel without inconvenience or danger to the outer edge of the borrow pit. The deceased was riding on a wagon loaded with rock, drawn by horses, going north on the right side of the road. When the wagon on which deceased was riding came opposite to his home the appellee was in an automobile going south, approaching the same place. When the automobile was within about three feet of a point opposite the horses' heads the child swung from the rear end of the wagon, intending to cross the highway to his home. At the time he reached the ground the automobile was approximately twenty-eight feet from him. He stopped momentarily, then started to cross the road in front of the automobile, holding up his hand, apparently as a warning to the driver, was struck by the left side of appellee's car, received wounds, from the effects of which he died shortly after. The car was travelling at thirty miles an hour, which is forty-four feet per second. As the automobile was apparently near the center of the road (at which place the child was afterwards picked up), the distance traversed by him...
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...being in a zone of safety, suddenly and without warning enters a zone of danger and is struck by such vehicle. The case of Haire v. Brooks, 42 N.M. 634, 83 P.2d 980, illustrates the rule. But we have no such case here. The deceased was travelling in the street; and though he may have been h......
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Ferran v. Jacquez
...very least prima facie evidence of negligence.' citing Turrietta v. Wyche, 54 N.M. 5, 212 P.2d 1041, 15 A.L.R.2d 407, and Haire v. Brooks, 42 N.M. 634, 83 P.2d 980. Although under long standing principles of appellate practice this court has refused to consider theories differing from those......
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...affected by having contributed to the injury, unless proximately contributing. Williams v. Haas, 52 N.M. 9, 189 P.2d 632; Haire v. Brooks, 42 N.M. 634, 83 P.2d 980. Also see Miller v. Marsh, 53 N.M. 5, 201 P.2d 341; 60 C.J.S., Motor Vehicles, Sec. Also, in Shephard v. Graham Bell Aviation S......
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Moss v. Acuff, 5649
...affected by having contributed to the injury, unless proximately contributing. Williams v. Haas, 52 N.M. 9, 189 P.2d 632; Haire v. Brooks, 42 N.M. 634, 83 P.2d 980. Also see Miller v. Marsh, 53 N.M. 5, 201 P.2d 341; 60 C.J.S., Motor Vehicles, Sec. The effect of statutory violation by driver......