Jontz v. Alderete, 6227
| Decision Date | 18 March 1958 |
| Docket Number | No. 6227,6227 |
| Citation | 64 N.M. 163,326 P.2d 95,1958 NMSC 37 |
| Parties | Vernon F. JONTZ, Plaintiff-Appellee, v. Leo ALDERETE, Intervenor-Appellant, Benjamin Padilla, Defendant. |
| Court | New Mexico Supreme Court |
Irwin S. Moise, Lewis R. Sutin, J. L. Leftow, Albuquerque, for appellant.
Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for appellee.
On May 3, 1957, at about 7:15 p. m. the plaintiff, Vernon Jontz, was driving his car east on Fruit Avenue in the city of Albuquerque, New Mexico. The defendant, Benjamin Padilla, was driving north on Seventh Street. The intervenor, Leo Alderete, a co-worker of the defendant, was being driven home by the defendant at the end of the working day.
Fruit Avenue and Seventh Street intersect at right angles. There are no traffic controls at this intersection and the speed limit is 25 miles per hour as stipulated to by the parties.
The two autos collided and each sustained damage on the front corner and wheel and on the right rear. The plaintiff's car turned and went directly north after the impact. The defendant's car proceeded to the northeast corner of the intersection, over the sidewalk and through a small picket fence.
As to the events immediately preceding the collision, there is some conflict in the evidence. The plaintiff glanced to the right at a time when he could see around the corner and for a distance of 100 to 125 feet. He glanced to the left and then to the right again. He was two car lengths or about 30 feet from the crosswalk when he saw the defendant's car approaching at a slightly greater distance from the intersection than he was himself. Plaintiff applied his brakes causing the car to skid. The skid marks measured 43 feet to the point of impact. The plaintiff alleges that his auto actually skidded some 33 1/2 to 35 feet since it is necessary to subtract from the total skid mark a length equal to the wheel base of his car.
Conflict in the evidence exists especially as to the speed at which the parties were traveling. Defendant states that the plaintiff did not think that he was going more than 20 miles per hour when entering the intersection and 10 miles per hour at the point of impact. Plaintiff now believes this estimate was wrong. An expert witness for the plaintiff stated that if the vehicle was traveling at 10 miles per hour at the point of impact it must have been traveling at about 35 miles per hour when the brakes were applied. In his appeal brief the plaintiff argues that there is substantial evidence that he was traveling between 20 and 25 miles per hour when the brakes were applied.
The defendant first saw the other car when the plaintiff was about 15 to 20 feet from the intersection and the defendant was about 15 feet from the intersection. The defendant told a police officer that he was going 30 miles per hour. The defendant's car left marks on the street but no skid marks.
Plaintiff brought suit against the defendant seeking to recover for damages to his auto as a result of the collision. The defendant filed an answer in denial and an affirmative defense of contributory negligence and a counterclaim for property damage. The intervenor filed a complaint in intervention seeking damages for personal injuries. Plaintiff answered setting up the affirmative defense of joint venture, contributory negligence and unavoidable accident.
The court made its findings of fact and conclusions of law to the effect that neither the plaintiff nor the defendant were negligent and that the accident was unavoidable and dismissed the plaintiff's complaint, the counterclaim of the defendant and the complaint in intervention. The intervenor appealed.
As his first point on appeal, the intervenor-appellant contends the finding of fact of the trial court that the plaintiff-appellee drove his car easterly in the intersection ahead of the defendant does not support the conclusions of law and the judgment based thereon that the appellee and the defendant were not both negligent.
The court made the following findings of fact and conclusions of law:
'Court's Findings of Fact
'The Court finds the facts to be:
'1. That the Plaintiff, Vernon F. Jontz, on May 3, 1955, was driving his 1951 Chevrolet automobile in an easterly direction on Fruit Avenue Northwest in the City of Albuquerque, New Mexico, and while so doing entered the intersection of the said Fruit Avenue and Seventh Street Northwest, Albuquerque, and had driven said vehicle into and passed the conter of said intersection, a distance of nineteen feet from the extension of the west curbline of Seventh Street, when the Defendant, Benjamin Padilla, traveling in a northerly direction, drove his 1951 Ford automobile against the right front fender of the Plaintiff's car, having proceeded into the intersection a distance of nine feet from the extension of the south curb-line of Fruit Avenue.
'2. That the Plaintiff's vehicle entered the intersection prior to the entry therein of the Defendant's vehicle.
'3. That the Intervener, Leo Alderete, was riding as a guest in Defendant's automobile at said time and place.
'4. That by stipulation of counsel pages 44 and 45 of the January, 1955 Insurance Law Journal were introduced into evidence.
'5. That the speed limit in the area in which the accident occurred was at that time twenty-five miles per hour.
'The Court concludes as a matter of law that:
'1. The Defendant, Benjamin Padilla, was not negligent in the premises.
'2. The Plaintiff, Vernon F. Jontz, was not negligent in the premises.
'3. The accident was unavoidable.
We agree with the contention that the findings of fact are not sufficient upon which to base a conclusion of negligence. Were the evidence of record such we would remand the case with the order that the findings be corrected to be sufficient for the purpose, or the case retried in order to develop the facts sufficiently.
The following cases illustrate that which may be properly done when the facts found do not support the judgment.
In Naffke v. Naffke, 240 Minn. 468, 62 N.W.2d 63, 65, the court said:
'Before a judgment can be sustained on appeal, the conclusion upon which it is based must find support in the findings of the trial court.'
The case involved a divorce proceeding wherein an award for support was made. The court reversed that part of the judgment because no finding was made as to the financial status of either party. A finding on this point was an essential fact necessary to reach a conclusion as to proper award.
In Apodaca v. Lueras, 34 N.M. 121, 278 P. 197, 199, the lower court made no finding of fact whatever. In reversing that case, the court said:
'Of course, the trial court is...
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