Hill v. Burnworth

• Decision Date: 26 September 1973
• Docket Number: No. 1050,1050
• Citation: 1973 NMCA 135,85 N.M. 615,514 P.2d 1312
• Parties: Carolyn B. HILL, Administratrix of the Estate of Michael D. Hill, Deceased, Plaintiff-Appellant, v. Frank R. BURNWORTH, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 1312

514 P.2d 1312

85 N.M. 615

Carolyn B. HILL, Administratrix of the Estate of Michael D.

Hill, Deceased, Plaintiff-Appellant, v. Frank R. BURNWORTH, Defendant-Appellee.

No. 1050.

Court of Appeals of New Mexico.

Sept. 26, 1973.

John S. Spence, Alamogordo, for plaintiff-appellant

Stuart D. Shanor, Hinkle, Bondurant, Cox & Eaton, Roswell, for defendant-appellee.

OPINION

HERNANDEZ, Judge.

Plaintiff appeals from a jury verdict in favor of defendant in a wrongful death action which arose out of an intersection collision that resulted in the death of her husband.

We affirm.

Plaintiff assigns four points of error.

The first point raised is that the trial court erred in permitting defendant's expert witness to answer a hypothetical question based, in part, on facts not in evidence. The facts not in evidence according to plaintiff were 'that it took defendant four seconds to travel from the stop sign to the point of impact.' Plaintiff's objection, however, was as follows:

'* * * this hypothetical question assumes facts which are not in evidence. As a matter of fact, they are contrary to the testimony of Mr. Burnworth, who said that the vehicle was at Sycamore, about half a block away and Mrs. Burnworth testified that the lights of other vehicle were at Sycamore.'

The objection as worded did not call the trial court's attention to the matter now complained of. Hence it will be treated as if no objection had been made. Williams v. Vandenhoven, 82 N.M. 352, 482 P.2d 55 (1971). We further point out that the expert witness had testified earlier, without objection, that in his opinion it took four seconds for the Burnworth vehicle to travel from the stop sign to the point of impact. As another part of point I, plaintiff argues that the trial court erred 'in refusing to order the defendants to produce for plaintiff's inspection and proper cross-examination of the said witness the source of the facts upon which the hypothetical testimony was based.' We believe that plaintiff means to say 'the facts upon which the hypothetical question was based' not the 'hypothetical testimony.' Plaintiff refers to a synopsis of an interview between Mr. Burnworth and his attorney which had been furnished the expert witness. After making his demand for the synopsis and the response by defendant's counsel the following colloquy took place: "I think maybe you can inquire of him as to what he predicated the matter on, other than what he's testified to here, Mr. Spence'. Mr. Spence: 'All right. We won't belabor the point, your honor." It is our opinion that by these words plaintiff abandoned his prior request and cannot now be heard to complain. We add that plaintiff did not question the witness further as to whether he based his opinion on information contained in the synopsis. Compare State v. Snow, 84 N.M. 399, 503 P.2d 1177 (Ct.App.1972).

Plaintiff's second point of error was that the trial court erred in 'rejecting plaintiff's tender of the testimony of her own expert witness in rebuttal to that of the testimony of defendant's expert witness.' The tender went to acceleration rate per second over a four second interval. The witness' answers, as to his qualifications to testify as to this rate, indicate a lack of qualification. In not allowing this testimony, the trial court exercised its discretion, and its ruling was neither an abuse of discretion nor manifestly wrong. Wood v. Citizens Standard Life Insurance Company, 82 N.M. 271, 480 P.2d 161 (1971); Hayes v. Hagemeier, 75 N.M. 70, 400 P.2d 945 (1963).

Plaintiff's third point of error is that the court erred in giving instruction No. 5 which was to the effect that by statute it is unlawful for a person who is under the influence of intoxicating liquor to operate any vehicle; that the speed limit at the place where the accident occurred was 45 miles per hour and if they found that the plaintiff's decedent violated either of these statutes that such conduct constituted negligence as a matter of law.

It was the trial court's duty to instruct the jury on the law applicable to issues of fact raised by the proof. Horger v. Mutual of Omaha Insurance Company, 83 N.M. 596, 495 P.2d 376 (1972); Gallegos v. McKee, 69 N.M. 443, 367 P.2d 934 (1962). One of defendant's affirmative defenses was contributory negligence and the record discloses substantial evidence as to decedent's violation of both the statutes referred to in the instruction. The trial court did not err in giving this instruction.

Plaintiff's fourth point of error is that the trial court erred in denying her motion for a new trial on the grounds of newly discovered evidence pursuant to Rule 60(b)(2) (§ 21--1--1(60)(b)(2), N.M.S.A.1953 (Repl. Vol. 4)). 'Such a motion is addressed to the discretion of the trial court.' Latta v. Harvey, 67 N.M. 72, 352 P.2d 649 (1960). The prerequisites for granting of a new trial are:

'(1) It must be such as will probably change the result if a new trial is granted;

'(2) it must have been discovered since the trial;

'(3) it must be such as could not have been discovered before the trial by the exercise of due diligence;

'(4) it must be material to the issue;

'(5) it must not be merely cumulative to the former...