HISAW v. HENDRIX

• Decision Date: 02 March 1950
• Docket Number: No. 5229,5229
• Citation: 22 A.L.R.2d 285,215 P.2d 598,54 N.M. 119
• Parties: HISAW et al. v. HENDRIX et al.
• Court: New Mexico Supreme Court

54 N.M. 119

215 P.2d 598

22 A.L.R.2d 285

HISAW et al.

v.HENDRIX et al.

No. 5229.

Supreme Court of New Mexico.

March 2, 1950.

[215 P.2d 599, 54 N.M. 121]

Mechem & Mechem, Las Cruces, for appellants.

Shipley & Shipley, Alamogordo, for appellees.

McGHEE, Justice.

The plaintiffs below (appellees here) were awarded judgment against the defendants (appellants here) on account of personal injuries, medical expenses, loss of time and the destruction of their automobile as the result of a rear end collision in the nighttime when a car occupied by them and being driven by the plaintiff, H. R. Hisaw, ran into the left rear end of a one and one-half ton truck used as a wrecker and owned by the defendants.

The case was tried to the court without a jury, and the following findings of fact and conclusions of law were filed in the case.

'1. That on the 26th day of February, 1948, the Defendants, acting by and through their agent and employee John Beasley, voluntarily parked and left standing, partially on the paved and main-traveled portion of Highway 70 in Otero County, New Mexico, in the night time, a one and one-half ton truck carrying a truck license and used for transportation of property. At the point where said truck was so left standing, there was a safe and practical place to leave or park said motor vehicle off the paved or main-traveled portion of said highway.

'2. That after parking and leaving said truck as aforesaid, the Defendants neglected and failed to put out any warning flares or reflectors as required by law.

'3. A few minutes after the truck was so parked by the Defendants, the Plaintiffs approached the place where said truck was parked in a 1937 Lincoln Zephyr sedan owned by them and driven by the Plaintiff H. R. Hisaw.

'4. As the Plaintiffs approached the truck of the Defendants they were blinded by the glare of headlights of another automobile parked on the opposite side of the highway from the truck of the Defendants and were unable to see the truck of the Defendants in time to avoid crashing into the rear of said truck, and while driving on the main-traveled portion of said highway the car in which the Plaintiffs were driving did crash into the truck of the Defendants.

'5. That at the time of the collision the car of the Plaintiffs was equipped with proper and sufficient headlights which were burning and their car was equipped with proper braking equipment.

'6. At the time of and immediately prior to the collision between the Plaintiffs' car and the Defendants' truck, the Plaintiff H. R. Hisaw was driving the said car in a cautious and prudent manner and maintaining a lookout for other objects on the highway.

'7. That neither of the Plaintiffs was negligent in any manner in the operation of the car in which they were riding at the time of and prior to the collision.

'8. That the Defendants were negligent in parking their said truck on the said highway and also in failing to immediately put out flares or reflectors; and that the said negligence of the Defendants was the proximate cause of the collision between the two motor vehicles.

'9. In and as a result of the collision, the automobile of the Plaintiffs was demolished beyond repair and both Plaintiffs were injured; and said injuries caused pain and suffering and necessitated expenditures for hospital, medical and surgical treatment and supplies in the amount of$846.15; and their automobile was damaged to the amount of $500.00.

'10. That defendants' wrecker vehicle was used solely for the purpose of towing disabled vehicle and servicing other vehicles on the highway.

'11. That defendants' wrecker vehicle had on it when parked at the scene of the collision the following equipment: clearance lights, tail-light and reflector, all of which were faced in the direction of whence plaintiffs' vehicle came, and the clearance lights were illuminated at the time and immediately prior to the collision of plaintiffs' and defendants' vehicle, and that plaintiffs' views of the same were not obstructed.

'12. That the car of State Policeman Bill Speight had on the back thereof a red emergency light, which was faced in the direction from which plaintiffs came, and which was illuminated at the time and immediately prior to the collision of plaintiffs' and defendants' vehicles.

'13. That the lights of the Massengill car were dimmed and it was completely off the highway, on the shoulder of the road, at the time of the approach of plaintiffs' car to the scene of the collision with the vehicle of defendants.

'14. That plaintiffs knew that the wrecker vehicle of defendants and the vehicle of State Police Bill Speight had passed them on the highway and that there was probably a wreck on the highway in the direction in which they were traveling.

'15. That the weather was clear at the time and place of the collision between the vehicles of plaintiffs' and defendants'.

'16. That plaintiffs had a clear and unobstructed view of the area in which defendants' vehicle was stopped, for a distance of from one-quarter to one-half mile.

'17. That plaintiff, Helen Hisaw, and plaintiff, H. R. Hisaw, were husband and wife and proceeding in a common vehicle at the time of the collision between the vehicles of plaintiffs and defendants.

'The Court concludes as a matter of law:

'1. That the Defendants were guilty of negligence and that such negligence was the proximate cause of the collision between the car of the Plaintiffs and the truck of the Defendants and the resulting injuries and damages to the Plaintiffs.

'2. That neither of the Plaintiffs was guilty of contributory negligence.

3. That the Plaintiffs are entitled to judgment against the Defendants in the amount of $6,596.15 and for their costs.'

The defendants first attack findings Nos. 1, 2, 4, 5, 6, 7 and 8 made by the court as being contrary to the evidence in the case, asserting that they are not sustained by the record. We have carefully examined the record and find that they are sustained by substantial evidence. Under our well-established rule they will, therefore, not be disturbed.

The defendants also assign error on the refusal of the trial court to adopt certain of their requested findings. An examination of the record convinces us that the trial court did not err in this regard.

They strongly urge that the wrecker tows disabled cars and is, not a truck used for the transportation of passengers or property, and that its driver was, therefore, not required to immediately put out flares when he parked a part of the truck on the paved portion of the highway. They also point out what they claim is an inconsistency in a part of finding No. 1, relating to the use of the wrecker and finding No. 11, saying the latter finding is controlling. Our statute which requires the placing of flares is Sec. 68-728, 1941 Comp., and we quote the part material here.

'68-728. Trucks over one ton-Emergency lighting equipment.-No motor vehicle carrying a truck license and of more than one (1) ton capacity used in the transportation of passengers or property shall be operated over the highways of this state at any time without carrying in an accessible place the following emergency lighting equipment:

'(a) Three (3) oil-burning torches, capable of burning continuously for not less than twelve (12) hours each, under any and all weather conditions to be carried in a heavy steel container so arranged that the oil flares stand in an upright position at all times.

'(b) Three (3) red flags with suitable...