Jensen v. Allen, 6237

Decision Date22 January 1958
Docket NumberNo. 6237,6237
PartiesMargaret JENSEN, Plaintiff-Appellant, v. Ernest R. ALLEN, Defendant-Appellee.
CourtNew Mexico Supreme Court

H. O. Waggoner, Albuquerque, for appellant.

Iden & Johnson, R. G. Cooper, Albuquerque, for appellee.

KIKER, Justice.

The plaintiff below, Margaret Jensen, was a passenger in a car driven by one John Averitt on December 5, 1953. Plaintiff was riding in the front seat next to Averitt and there were no other passengers. They proceeded on Highway 10 bound for the Cedar Crest Inn. It was about sundown and Highway 10 was icy and slick. Mr. Averitt drove with his headlights on. Upon approaching the driveway to the Cedar Crest Inn, Mr. Averitt indicated his intention to turn into that driveway by causing the turn signal indicator on the car to be activated and also by extending his arm from the window in the accepted manner to indicate his intention to make the turn. A truck or other vehicle was following the Averitt car.

As the Averitt car entered the driveway, the car driven by the defendant came over a rise in the road from the opposite direction approximately 100 to 150 feet away. There was testimony indicating that the defendant was traveling at a rate of speed of 50 miles per hour. Being unable to stop, defendant crashed into the right side and center post of the Averitt car. As a result of the crash, plaintiff was thrown from the car and landed on her head.

On December 7, 1953, after sustaining constant pain since the night of the accident, plaintiff consulted a doctor in Albuquerque. The injury was diagnosed by the doctor as a whiplash injury and a cervical collar was prescribed. Physical therapy treatments were prescribed and in addition plaintiff performed exercises at home and used a heat lamp, all under doctor's orders.

Plaintiff brought an action in the district court of the second judicial district of Bernalillo County, suing to recover damages for personal injuries against the defendant.

Defendant offered no witnesses whatsoever and rested at the close of plaintiff's case for the reason that the defendant refused on behalf of his insurance carrier, to appear at all, he not being able to be subpoened as he was then located in Colorado.

Trial was had before a jury and verdict was returned in favor of the defendant. Plaintiff's motion for a new trial was denied, and appeal was taken.

Plaintiff relies upon three points for reversal. First, in its discretion to grant or overrule a motion for a new trial, the court must, and it is its duty to set aside a verdict which is against the weight of the evidence....

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17 cases
  • Peralta v. Martinez, 2786
    • United States
    • Court of Appeals of New Mexico
    • April 12, 1977
    ...80 N.M. 306, 454 P.2d 963 (1969). A wrong without damage or damage without wrong does not amount to a cause of action. Jensen v. Allen,63 N.M. 407, 320 P.2d 1016 (1958); see Chisholm v. Scott, 86 N.M. 707, 526 P.2d 1300 3) In personal injury actions not involving malpractice, the limitation......
  • In re Pettibone Corp., Bankruptcy No. 86 B 1563
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Illinois
    • August 26, 1988
    ...by a plaintiff therefrom. Wrong without damage, or damage without wrong does not constitute a cause of action. Jensen v. Allen, 63 N.M. 407, 320 P.2d 1016, 1017 (1958). The gist or essence of a right of action for injury caused by negligence is the injury or damage which has been wrongfully......
  • Sauter v. St. Michael's College
    • United States
    • Supreme Court of New Mexico
    • August 15, 1962
    ...whether a preponderance of the evidence will support the verdict. In Davis v. Campbell, 52 N.M. 272, 197 P.2d 430, and in Jensen v. Allen, 63 N.M. 407, 320 P.2d 1016, we held that the weight of the evidence is not considered on appeal, rather only, if there is any substantial evidence to su......
  • Martinez v. Research Park, Inc.
    • United States
    • Supreme Court of New Mexico
    • April 5, 1965
    ...contractors. Ordinarily, a cause of action exists only when there is a concurrence of a right, a duty and a breach. See Jensen v. Allen, 63 N.M. 407, 320 P.2d 1016; London v. Bruskas, 64 N.M. 73, 324 P.2d 424. But, even though the forfeiture clause of section 14, supra, implies that a contr......
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