Hoskins v. Albuquerque Bus Co., 6949
| Decision Date | 12 February 1963 |
| Docket Number | No. 6949,6949 |
| Citation | 72 N.M. 217,382 P.2d 700,1963 NMSC 29 |
| Parties | Mary Thelma HOSKINS, Plaintiff-Appellee, v. ALBUQUERQUE BUS COMPANY, Incorporated, and John Doe, Defendants-Appellants. |
| Court | New Mexico Supreme Court |
Sutin & Jones, Albuquerque, for appellants.
McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellee.
Defendants-appellants, Albuquerque Bus Company, Incorporated, and John Doe, appeal from a judgment for plaintiff-appellee, Mary Thelma Hoskins, in the amount of $2500 for personal injury.
Appellee was a passenger for hire of appellants on July 1, 1959. She was seated in the center of the bus about one seat from the center or rear door. Because she was late for work, she wanted to be the first one out at her stop. As the bus approached her stop, she left her seat and walked toward the rear door while the bus was till in motion. She descended to the last step in the stairwell, putting her right hand lightly on the door and keeping her left hand at her side. The bus stopped. Simultaneously, the door opened. The bus jerked and she was thrown from the bus to the ground.
Appellants attack the trial court's finding of fact number III, saying:
'(a) Did the driver bring the bus to a sudden stop with a jerk and simultaneously open rear door?'
The trial court's finding of fact number III reads:
Appellants would inject into this finding a determination by the trial court that the driver was negligent. As the finding attacked does not include such a determination, this aspect cannot be considered.
The only evidence relevant to this issue was presented by appellee. Appellants argue that because there was an apparent conflict in the testimony given by the two eyewitnesses testifying, that the finding is not supported by substantial evidence. A question of substantial evidence may not be so resolved. Merely because a conflict exists is not sufficient cause for us to hold that a resolution of the conflict by the trial court is not founded adequately so as to be grounds for reversal. Coseboom v. Marshall Trust, 67 N.M. 405, 356 P.2d 117. The trial court had the opportunity to listen to the evidence and to observe the demeanor of the witnesses. From this participation in the trial, the trier of facts is best able to resolve any conflict which may arise. Simply because this court may feel that it may have reached an opposite conclusion under the same circumstances will not permit us to reverse the trial court's decision. Coseboom v. Marshall Trust, supra; Jontz v. Alderete, 64 N.M. 163, 326 P.2d 95.
We briefly review the evidence. Appellee testified as follows:
'
'
On cross-examination, appellee testified:
On redirect examination, with reference to her statements made at the time her deposition was taken on February 13, 1960, appellee was asked:
'
Dr. Myron Gordon Rosenbaum testified that he examined appellee on July 2, 1959, and that appellee told him that the bus stopped to let her out, the door opened, the bus jerked, she was thrown to the curb and fell on her hands and knees trying to protect her face.
Luther Smith, Jr., called as a witness on behalf of appellee, testified in part as follows:
'
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* * *
On cross-examination, Mr. Smith testified:
'
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On redirect, Mr. Smith testified
We hold that there is substantial evidence to support the trial court's finding of fact number III.
Appellants' point II is without merit. It asserts that finding of fact number III, even if supported by substantial evidence, does not support the finding and conclusion of law that the bus driver was negligent. Appellants contend under this point that when a bus driver brings a bus to a sudden stop with a jerk, it does not constitute negligence of the bus driver. Appellants argue that there is no breach of duty in this case only by reason of 'a kind of jerk,' 'a sudden jerk,' 'a jerk,' 'a big hard jerk,' or 'a hard stop.' Appellants say that adjectival descriptions of the nature of the sudden start or stop cannot be found legally to constitute negligence unless some definite factual incident occurs as a result thereof, which is abnormal and extraordinary and which deviates from the normal operation.
The trial court found that appellee was a passenger on...
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