Hayes v. Hagemeier

• Decision Date: 13 May 1963
• Docket Number: No. 7185,7185
• Citation: 75 N.M. 70,400 P.2d 945,1963 NMSC 95
• Parties: Carolyn HAYES, a minor, by Betty L. Evans, her mother and next friend, Plaintiff-Appellant, v. William J. HAGEMEIER and Paul Nutter, d/b/a Paul Nutter & Son School Bus Charter Service, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 945

400 P.2d 945

75 N.M. 70

Carolyn HAYES, a minor, by Betty L. Evans, her mother and next friend, Plaintiff-Appellant, v. William J. HAGEMEIER and Paul Nutter, d/b/a Paul Nutter &

Son School Bus Charter Service, Defendants-Appellees.

No. 7185.

Supreme Court of New Mexico.

May 13, 1963.

Dissenting Opinion May 27, 1963.

Rehearing Denied April 28, 1965.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellant,

Modrall, Seymour, Sperling, Roehl & Harris, Frank H. Allen, Jr., Albuquerque, for appellees.

NOBLE, Justice.

Plaintiff, Carolyn Hayes, a minor, has appealed from a judgment denying recovery for personal injuries following a jury verdict finding the issues in defendant's favor.

Very briefly, the facts are that Carolyn, an eight-year-old school child, was being returned home from school on a bus, owned by defendants Nutter and operated by Hagemeier. The bus stopped for a red light at the corner of Twelfth and Candelaria streets, in Albuquerque, New Mexico, and proceeded across the intersection with the green traffic light. There, the bus stopped immediately adjacent to the right hand curb and sidewalk, with its rear some five feet beyond the pedestrian crosswalk, to discharge school children. Some twenty or twenty-five children, including Carolyn, left the bus. All of the children, except Carolyn, followed the sidewalk to the pedestrian crossing, but Carolyn crossed in front of the bus and was struck and injured by a passing vehicle.

The action was by Carolyn, a minor, by her mother and next friend, against the owners and operator of the bus. During the trial, Betty Evans was allowed an oral trial amendment claiming medical expenses paid by her for her daughter. Following the jury verdict finding the issues in defendants' favor, plaintiffs moved for for a new trial which was denied by the court. This appeal followed.

A question is presented at the outset as to whether Betty Evans perfected an appeal. Both the motion and order granting appeal were in the singular. The notice only named Carolyn as the appellee. This court has a duty to determine whether it has jurisdiction of an appeal. As to cases filed prior to March 15, 1961, a timely allowance of an appeal is necessary to confer jurisdiction upon the Supreme Court of an appeal from the judgment of a district court. Chavez v. Village of Cimarron, 65 N.M. 141, 333 P.2d 882; Public Service Company of New Mexico v. First Judicial District Court, 65 N.M. 185, 334 P.2d 713; Breithaupt v. State, 57 N.M. 46, 253 P.2d 585. The record fails to disclose a timely appeal by Betty Evans.

It is conceded that traffic at the intersection of Twelfth and Candelaria streets is controlled by traffic lights and that the school bus did not operate its special warning devices when it discharged the school children at that intersection.

Section 64-18-48, N.M.S.A.1953, reads:

'A. When stopping to receive or discharge school children on a roadway, the operator of a school bus shall drive his vehicle to the extreme right side of the paved or traveled portion. Before discharging any passengers the school bus shall be brought to a complete STOP, and the special warning devices provided in section 64-18-47 New Mexico Statutes Annotated, 1953 Compilation shall be in operation the full time the bus is stationary.

'B. Whenever a school bus stops to discharge school children who must cross the roadway at a point not under the control of a traffic officer or a clearly visible electrical or mechanical traffic signal, the school children shall cross the roadway in front of the standing school bus. The bus shall not be started until all school children undertaking to do so have safely crossed the roadway.

'C. Any operator of a school but failing to comply with the provisions of this section shall be punished as provided in section 64-22-4 New Mexico Statutes Annotated 1953 Compilation, and shall have his driver's license suspended for a period not exceeding three months.'

The principal question raised by objections to testimony and refusal to give requested instructions is whether violation of that portion of the statute, which requires operation of the special warning devices while discharging school children, constitutes negligence per se and makes defendants liable for Carolyn's injuries.

It has been held in New Mexico that violation of a statute constitutes negligence per se and when, as a proximate result thereof, a person is injured, damages may be recovered if the statutory provision violated was for the benefit of the person injured. Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370; Zamora v. J. Korber & Co., Inc., 59 N.M. 33, 278 P.2d 569. First, we examine the statute to determine whether the provision of the statute violated was for the befefit of plaintiff under the circumstances at the time of the accident.

A guide to the proper construction of statutes is provided in Reese v. Dempsey, 48 N.M. 417, 152 P.2d 157, where it was said:

'* * * In the construction of a statute, in order to determine the true intention of the legislature, the particular clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts. State [ex rel. People's Bank & Trust Co. of Las Vegas] v. York, 24 N.M. 643, 175 P. 796. All parts of an act relating to the same subject should be considered together, and not each by itself. Sakariason v. Mechem, 20 N.M. 307, 149 P. 352. All legislation is to be construed in connection with the general body of the law. Dorman v. Sargent, 20 N.M. 413, 150 P. 1021. * * *'

The evils which the legislature intended to correct and the purpose of the legislation must be considered in construing a statute. It cannot be assumed that the legislature would do a futile thing. Davies Warehouse Co. v. Bowles, 321 U.S. 144, 64 S.Ct. 474, 88 L.Ed. 635; Bergner v. State, 144 Conn. 282, 130 A.2d 293; Clark v. Clark, 1965 Ohio St. 457, 136 N.E.2d 52; 2 Sutherland, Statutory Construction (3rd. Ed.), Sec. 4510.

The statute being considered was a part of Sec. 109.7, Ch. 139, Laws 1953, a code regulating traffic on the highways. Applying the principles of statutory construction, all other parts of the same traffic code which are in pari materia must be examined. Section 64-18-46, N.M.S.A.1953, requires motor vehicles to stop at least ten feet before reaching a school bus, stopped to receive or discharge school children, and while its signals are in operation, and such vehicles may not proceed so long as such signals are being operated.

The purpose of these statutes, and of the requirement that school buses be equipped with and operate warning signals when receiving or discharging school children becomes apparent when all the applicable statutes are read and considered together. It becomes immediately apparent that the legislature recognized that school buses are usually required to discharge school children at places where there are no traffic controls. It seems clear that, recognizing this fact, the legislature, in order that there always be traffic controls for the safety of school children, provided that the school bus itself should control the traffic where no mechanical or electrical traffic controls are provided. Subsection B of Sec. 64-18-48 supra, recognizes that control of traffic by the school bus is unnecessary, at least where traffic is under control of a traffic officer or mechanical or electrical traffic signals.

As a part of the traffic control by a school bus, it is required that children cross in front of the bus when they are discharged at a place not under other traffic control. Under such circumstances, the bus is required to operate its signals and to remain stationary until all children have safely crossed the road. That, together with the prohibition against other vehicles passing such a bus provides traffic control for the safety of the children just as traffic control lights do where installed. The language is:

'Whenever a school bus stops to discharge school children * * * at a point not under the control of a traffic officer or a clearly visible electrical or mechanical traffic signal, the school children shall cross the roadway in front of the standing school bus. * * *'

We think it is implicit in the statute that discharged school children shall remain off the traveled portion of the roadway and proceed off the roadway to the pedestrian crosswalk when they are discharged from the bus at a traffic controlled intersection. That purpose of the legislature becomes manifest when it requires that '[t]he bus shall not be started until all school children undertaking to do so have safely crossed the roadway,' only when children are discharged where no traffic controls are provided. A bus discharging children at a traffic controlled intersection is not required to remain stationary until all children have safely crossed the street under protection of its traffic signals, but, under such circumstances, may start as soon as the children have alighted from the bus. The statute, therefore, does not contemplate that the bus signals provide the protection for such discharged children in crossing the roadway at traffic controlled intersections.

Section 64-18-64, N.M.S.A. 1953, requires the director of school transportation to adopt and enforce regulations, not inconsistent with the act, to govern operation of all school buses and provides that such regulations shall be a part of every school bus contract and that the contract of any bus owner may be cancelled for failure to obey all such regulations.

Much of the testimony objected to had to do with whether the state director of school transportation, pursuant to Sec. 64-18-64, adopted regulations directing school bus operators not to use their signal devices when discharging school children at traffic controlled intersections and to instructions given to...