Kelly v. Montoya

• Citation: 1970 NMCA 63,470 P.2d 563,81 N.M. 591
• Decision Date: 08 May 1970
• Docket Number: No. 429,429
• Parties: George G. KELLY, Plaintiff-Appellant, v. Lawrence MONTOYA, John S. Ward, Darvel D. Richins, Richins Bros., Inc., and Norbert E. O'Connor, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 563

470 P.2d 563

81 N.M. 591

George G. KELLY, Plaintiff-Appellant, v. Lawrence MONTOYA, John S. Ward, Darvel D. Richins, Richins

Bros., Inc., and Norbert E. O'Connor, Defendants-Appellees.

No. 429.

Court of Appeals of New Mexico.

May 8, 1970.

Avelino V. Gutierrez, Albuquerque, for appellant

Jackson O. Akin, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for appellee Montoya.

J. J. Monroe, Iden & Johnson, Albuquerque, for appellee Ward.

Frank H. Allen, Jr., Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for appellee Richins.

Eugene E. Klecan, Albuquerque, for appellee O'Connor.

OPINION

WOOD, Judge.

Plaintiff was injured in a multi-vehicle accident. The trial court granted defendants' motion for summary judgment. Summary judgment is not proper where there is the slightest issue as to a material fact. In deciding a motion for summary judgment, the trial court must view the matters presented and considered by it in the most favorable aspect they will bear in support of the right to a trial on the issues. Perry v. Color Title of New Mexico, 81 N.M. 143, 464 P.2d 562 (Ct.App.1970). We reverse the summary judgment discussing: (1) statutory violation; (2) foreseeability; (3) proximate cause and independent intervening cause; and (4) the burden of the party opposing summary judgment.

The accident occurred on a highway east of Deming, during daylight, but also during a sand storm. The wind was strong and gusting. Because of the sand and wind gusts, visibility varied from zero to two hundred feet.

The first accident occurred when Montoya and Ward, both across the center line of the highway, collided. There is evidence that a vehicle, or two, stopped on the highway behind Ward's vehicle. Next to stop was Richins (defendants Richins and Richins Bros., Inc.). O'Connor stopped behind Richins. Kenosha (Kenosha Auto Transport Corporation and Woodburn) stopped behind O'Connor.

The second accident occurred when Baumer (Baumer Foods, Inc. and Logan) ran into the rear of Kenosha. Kenosha in turn, collided with O'Connor and Richins, and O'Connor collided with Richins.

Plaintiff, a passenger in the Baumer truck, sued for personal injuries. His claim against Kenosha and Baumer has been settled. The trial court granted summary judgment in favor of Montoya, Ward, Richins and O'Connor. Plaintiff appeals.

When we refer to 'testimony' or 'evidence,' we refer to that which appears in the depositions.

Statutory violation.

Plaintiff says there are several issues of negligence. We need consider only one of them. Section 64--18--49(a), N.M.S.A.1953 (Repl.Vol. 9, pt. 2) provides in part:

'* * * (N)o person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park, or so leave such vehicle off such part of said highway, * * *.'

There is testimony that the highway at the accident scene had good eight foot shoulders, that the descent from the shoulders to the bar ditch was not steep, that vehicles drove onto the shoulder and into the bar ditch area and beyond. There is testimony that both the Montoya and Ward vehicles were driveable after their accident, and that some ten minutes elapsed between the two accidents.

Richins and O'Connor do not dispute that a factual issue existed as to their violation of § 64--18--49(a), supra; Montoya and Ward do. These two defendants, relying on selected testimony, assert their cars were off the highway at the time of the second collision. They assert the only testimony to the contrary is that of the investigating State Police officer; they claim this officer's testimony raised no factual issue because he admitted to uncertainty as to the location of the Montoya and Ward cars when he arrived on the scene.

Contradictory inferences may be drawn from the officer's testimony. At one place he said the vehicles were still on the road. At another place it is indicated the officer had made a sworn statement that the two vehicles were on the road. Other parts of his testimony seem to contradict this.

The fact that contradictory inferences exist shows that the evidence is not undisputed. The conflict in the testimony of a single witness is to be resolved by the trier of fact. Hughes v. Walker, 78 N.M. 63, 428 P.2d 37 (1967). The trial court could not properly resolve such conflict on a motion for summary judgment for by doing so, it would be weighing the evidence. It is not the function of the trial court to weigh the evidence in considering a motion for summary judgment; such a motion may be granted only where the facts are undisputed. Johnson v. J.S. & H. Construction Co., 81 N.M. 42, 462 P.2d 627 (Ct.App.1969).

There being factual issues as to the violation of § 64--18--49(a), supra, there are factual issues as to the negligence of each of the four defendants. Gould v. Brown Construction Company, 75 N.M. 113, 401 P.2d 100 (1965); Horrocks v. Rounds, 70 N.M. 73, 370 P.2d 799 (1962); Williams v. Neff, 64 N.M. 182, 326 P.2d 1073 (1958).

Foreseeability.

Defendants assert that even if they violated a statute, they could not be held negligent because of a lack of foreseeability. They rely on Anderson v. Jones, 66 Ill.App.2d 407, 213 N.E.2d 627 (1966). In that case Jones was in the same position as Montoya and Ward in this case. There, as here, cars had stopped on the highway after the first accident and before the second accident occurred. Anderson was in the last car which had stopped when Zehr's car rear-ended Anderson's car. In ruling the second accident was not foreseeable, the Illinois court states:

'It is quite clear that the immediate cause of plaintiffs' injuries and damages was the force set in motion through the negligent act of Zehr. The force set in motion by Jones had spent itself. It was in repose. It was quiescent. The incident was at an end. Plaintiffs were home free save for the wrongful act of Zehr. Jones, too, is home free from responsibility unless it can be said that he should have reasonably anticipated or reasonably foreseen these or like results or that these or like results were reasonably probable. If they were, the causal connection is not broken. If they were not, Jones is effectively insulated from responsibility and the new force of Zehr is the sole and proximate cause of plaintiffs' injuries.'

Defendants state that if Jones could not have foreseen the consequences of his negligence in Anderson v. Jones, supra, then they, and particularly Montoya and Ward, could not have foreseen the consequences of their asserted statutory violation in blocking the highway.

We agree that Anderson v. Jones, supra, is factually similar to our case. Is the legal result from those facts in Illinois the law of New Mexico?

In New Mexico, foreseeability is an element of negligence. Martin v. Board of Education of City of Albuquerque, 79 N.M. 636, 447 P.2d 516 (1968); see Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967). U.J.I. 12.1 defines negligence in terms of foreseeability. The committee comment to U.J.I. 11.1, citing New Mexico authority, states:

'The violation of a statute which is enacted for the benefit or protection of the party claiming injury from the violator or for the benefit or protection of a class of the public to which such person is a member is negligence per se. * * *' It seems obvious to us that a traffic statute such as § 64--18--49(a), supra, was enacted for the benefit of persons using our highways. Plaintiff, a person using the highway, had the benefit of such statute. Why? Because, in our opinion, it is foreseeable that violations of a traffic rule may cause accidents. 'Foreseeability does not mean that the precise hazard or the exact consequences which were encountered should have been foreseen. * * *' Harless v. Ewing, 80 N.M. 149, 452 P.2d 483 (Ct.App.1969).

Since it is foreseeable that blocking the highway may cause other persons to have accidents, a violation of the statute which prohibits such blocking is negligence per se. The rule, that violation of the statute is negligence per se, includes the element of foreseeability where, as here, plaintiff is a beneficiary of the statute violated. The holding as to foreseeability in Anderson v. Jones, supra, does not state New Mexico law, and is not applicable.

Even without the foregoing, there is a factual issue as to foreseeability in this case. The State Police officer testified: '* * * there's a lot of them stops on the roadway, and we have a lot of accidents the same way.' This is evidence of the foreseeability of an accident from stopping on the highway.

There being factual issues as to a statutory violation, there were factual issues as to the negligence of each of the four defendants. The factual issue of negligence includes the factual issue of foreseeability. Martin v. Board of Education of City of Albuquerque, supra.

Proximate cause--independent intervening cause.

Defendants contend the act of Baumer, in running into the stopped vehicles, intervened between any negligence on their part and plaintiff's injuries. The result of this intervening act, according to defendants, is to reduce their asserted negligence to a remote cause, or to a condition which did no more than make the second accident possible. Since, according to defendants, their negligence is either a remote cause, or a condition, it is not the proximate cause of plaintiff's injuries. A corollary of this premise is that Baumer's negligence is an independent intervening cause.

The Oklahoma law, on which defendants rely, supports these contentions. Haworth v. Mosher, 395 F.2d 566 (10th Cir. 1968); Beesley v. United States, 364 F.2d 194 (10th Cir. 1966); Evans v. Caldwell, 429 P.2d 962 (Okl.1967); Transport Indemnity Company v. Page, 406 P.2d 980 (Okl.1965); Porter v. Norton-Stuart Pontiac-Cadillac of Enid, 405 P.2d 109 (Okl.1965). As stated in Beesley v. United States, supra:

'The ...