Horrocks v. Rounds

• Decision Date: 04 April 1962
• Docket Number: No. 6833,6833
• Citation: 1962 NMSC 48,370 P.2d 799,70 N.M. 73
• Parties: Barbara J. HORROCKS, Administratrix of the Estate of Hazel Vredeveld, Deceased, Jack P. Clark, Lonnie Mead and Dora Mead, his wife, Plaintiffs-Appellants, v. Robert Edison ROUNDS, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 799

370 P.2d 799

70 N.M. 73

Barbara J. HORROCKS, Administratrix of the Estate of Hazel

Vredeveld, Deceased, Jack P. Clark, Lonnie Mead and Dora Mead, his wife, Plaintiffs-Appellants, v. Robert Edison ROUNDS, Defendant-Appellee.

No. 6833.

Supreme Court of New Mexico.

April 4, 1962.

Rehearing Denied April 4, 1962.

Coker, Boyd & May, Albuquerque, for appellants.

Adams & Calkins, Albuquerque, for appellee.

PER CURIAM.

Upon consideration of Motion for Rehearing, the original opinion heretofore filed is withdrawn and the following substituted therefor.

CHAVEZ, Justice.

This is an action to recover for personal injuries and property damage sustained in an automobile collision.

The complaint alleged negligence, and appellee answered denying negligence and setting up the affirmative defenses of contributory negligence and assumption of risk. The case was tried to a jury. After the close of the evidence, when both sides had rested, appellee moved for and was granted the right, over objection, to amend his pleading so as to allege the additional affirmative defense of unavoidable accident. The jury rendered a verdict for appellee; motion for new trial was overruled; judgment was entered dismissing appellants' causes of action with prejudice. From said judgment, appeal was taken.

The accident in question occurred on September 5, 1958, at about 3:30 P.M. approximately two miles west of Clines Corners, on the west-bound side of U. S. 66, a four-lane divided highway, when appellee's car crashed into the rear of appellants' 1957 Ford which was parked partly on and partly off the north shoulder of the highway some 600 feet west of the crest of a hill.

Appellants had stopped at the scene of an earlier accident consisting of a large trailer and truck which had overturned and was lying entirely on the 63-foot bar ditch or neutral ground dividing the two east-bound lanes from the two west-bound lanes. The day was cold, windy and overcast, with intermittent rain and drizzle. Visibility was good, however, and there is testimony that one could see from one to one and onehalf miles from the crest of the hill westward. The road was extremely slick when it was wet.

Appellee testified that he had been driving 50 m. p. h. when he came over the crest of the hill. He saw the overturned trailer which appeared to be a Greyhound bus from a distance, saw a burning flare in the middle of the road, and then finally saw the parked car of appellants. There was no other traffic on the west-bound lanes, which were a total of 36 feet wide. He attempted to slow down, braking successfully down to 30 m. p. h., swerved to pass the parked car as he was in the right lane, skidded and crashed. He was aware of the fact that the highway was slick when wet having seen the warning sign at Clines Corners, and having previously slowed down to 50 m. p. h. due to this warning. There is testimony that the road in this area was abnormally slick; that there had been trouble with it; and the investigating officer's opinion was that the only way one could determine the actual character of the surface was by braking abruptly or swerving unless one noted the warning signs.

Appellants rely on five points for reversal:

I. The trial court erred in instructing the jury, over appellants' objections, upon the claim or defense of unavoidable accident, as a jury question is not fairly raised in the evidence and such instruction is contrary to the law and the evidence.

II. The trial court erred in charging the jury upon the effect of Section 64-18-49, N.M.S.A., 1953 Comp., that a violation thereof would constitute negligence per se on the part of the appellants, since the facts of the case conclusively show that the statute is not applicable.

III. The trial court erred in charging the jury on the doctrine of sudden emergency since there was no evidence to support consideration of such doctrine and such charge was contrary to the law and the evidence.

IV. The trial court erred in charging the jury on the doctrine of imputed negligence of a driver to passengers on the theory of joint adventure, for the reason that same is contrary to the law and the evidence.

V. The trial court erred in charging the jury on the doctrine of assumed risk by the appellants, since application of said doctrine and consideration thereby by the jury was contrary to the law and the evidence.

The cause is now before us on motion for rehearing, which has been duly considered and is denied. We remain convinced of the correctness of our conclusion that the case must be retried because of errors committed by the trial court; furthermore, we adhere to our view of the law as set forth in our original opinion, now withdrawn. In it, we considered only the second point raised by appellants since, under the facts as originally presented and argued to us, it was determinative of the case. We held that, where it is impractical for a car to park entirely off the highway, it is not a violation of the provisions of Sec. 64-18-49, N.M.S.A., 1953 Comp., for it to be parked partially or entirely on the highway, regardless of the reason for stopping, so long as the other mandatory provisions of the statute are met; i. e., that an unobstructed width of highway opposite the standing vehicle is left for the free passage of other vehicles and a clear view of such stopped vehicle is available for a distance of 200 feet in each direction. McGovern v. Greyhound Corporation, 53 Wash.2d 773, 337 P.2d 290. Indeed, in the case of a divided highway such as Highway 66, probably the only clear view required is the one ahead. The presence or absence of a compelling reason for stopping may well be pertinent insofar as the issue of contributory negligence is concerned, but it has no bearing on the issue of violation of the statute. We therefore rejected appellee's construction of the statute.

Appellee, for the first time on rehearing, points to certain testimony which may be interpreted to show that it was practical for appellants to have parked entirely off the highway. Thus, if we consider these new facts raised by appellee, it would have been possible for the trial court to have properly instructed upon the statute, and its violation would have been negligence per se. Zamora v. J. Korber & Co., 59 N.M. 33, 278 P.2d 569. We note in passing that the actual instruction given by the court was erroneous because it did not inform the jury that the violation, if any, must also be found to be the proximate cause of the accident. Martin v. Gomez, 69 N.M. 1, 363 P.2d 365; Turner v. McGee, 68 N.M. 191, 360 P.2d 383; Isaac v. Seguritan, 66 N.M. 410, 349 P.2d 126; Hartford Fire Insurance Company v. Horne, 65 N.M. 440, 338 P.2d 1067; and Williams v. Haas, 52 N.M. 9, 189 P.2d 632. Appellants did not point out this specific vice to the trial court in their objection to the instruction, and thus it was insufficient to preserve the error for review. Sturgeon v. Clark, 69 N.M. 132, 364 P.2d 757; and Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362, and cases cited therein.

As originally presented to this court, the facts indicated that it was impractical--even impossible--to have parked entirely off the highway; therefore, it appeared that the learned trial court committed error by charging upon issues which, although pleaded, were not raised by the evidence. Reed v. Styron, 69 N.M. 262, 365 P.2d 912; Pitner v. Loya, 67 N.M. 1, 350 P.2d 230; and Thompson v. Anderman, 59 N.M. 400, 418, 285 P.2d 507.

Pursuant to Supreme Court Rule 15(6), we did not search the record but accepted the uncontradicted assertions of fact as set forth by appellants' brief that the shoulder of the road at or near the place where appellants' car was parked was too narrow to permit off-highway parking. Appellants' presentation of the facts in this light was prompted by their acquiescing in appellee's theory of the case that the sole reason the car was parked partially on the highway was the physical impossibility of parking it otherwise. Only the testimony given by appellee's witnesses was cited; the testimony of appellants' witnesses that the car was not parked on the highway was ignored. This appellants did under the belief that they were complying with the rule requiring that only evidence favorable to the verdict and to the giving of the instruction be considered. Minor v. Homestake-Sapin Partners Mine, 69 N.M. 72, 364 P.2d 134; and Morrison v. Rodey, 65 N.M. 474, 340 P.2d 409. Neither side apparently realized, nor did they argue, that this omitted testimony could logically be interpreted to indicate that the shoulder was sufficiently wide to permit off-highway parking and that, if appellants were parked partially on the highway, the reason for their doing so could have been other than the physical impossibility of parking off the highway. As we interpret the statute, a driver must always park off the highway when practical to do so; the other requirements of clear view and sufficient passing space are not pertinent unless and until it is shown that it is impractical to park off the highway at the particular place in question.

We therefore turn our attention to appellants' point I and examine the trial court's charge to the jury on unavoidable accident and the objection thereto by appellants. The trial court, in instruction No. 6, informed the jury that the appellee relied upon three defenses, the third being unavoidable accident. He then defined unavoidable accident as follows:

'9. In law we recognize what is termed an unavoidable or inevitable accident. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence. Even if such an accident could have been avoided by the exercise of exceptional foresight, skill or caution, still, no one may be held liable for injuries resulting from it.'

Appellants' objection reads as...