Langenegger v. Mcnally.
| Citation | 171 P.2d 316,50 N.M. 96 |
| Decision Date | 27 June 1946 |
| Docket Number | No. 4945.,4945. |
| Parties | LANGENEGGERv.McNALLY. |
| Court | Supreme Court of New Mexico |
OPINION TEXT STARTS HERE
Appeal from District Court, Chaves County; James B. McGhee, Judge.
Action by Jean Langenegger against Carl McNally to recover damages to plaintiff's automobile alleged to have been caused by defendant's negligence. Judgment for defendant, and plaintiff appeals.
Affirmed.
Record sustained trial court's findings that plaintiff motorist was guilty of contributory negligence in failing to exercise proper degree of care to avoid intersectional collision, in failure to keep a proper lookout, in failing to reduce speed, and in driving her automobile into defendant's automobile which had first entered intersection. 1941 Comp. §§ 68-504, 68-518.
E. E. Young, of Roswell, for appellant.
A. B. Carpenter, of Roswell, for appellee.
This is an action by plaintiff to recover damages to her automobile alleged to have been caused by the negligence of the defendant resulting in an intersectional collision. Defendant denied that he was negligent and pleaded contributory negligence of the plaintiff.
The decision of the court contained findings of fact to the effect that plaintiff did not exercise the proper degree of care to avoid the collision, that she was negligent in failure to keep a proper lookout for cars crossing the intersection and in failing to reduce her speed so as to allow defendant to clear the intersection before entering it, and in continuing to drive without sufficiently reducing her speed and went into the intersection notwithstanding defendant was in her plain sight and already in the intersection, and in driving her car into defendant's car. The court also found that neither party was exceeding the speed limits of the City of Roswell, and that the defendant was negligent in attempting to cross at such a low rate of speed as that he employed, and that the negligence of each party proximately contributed to the collision.
The court's conclusion of law was that the plaintiff should be denied recovery whereupon the court rendered judgment in favor of defendant, dismissing plaintiff's cause of action.
The appellant urges that the court erred in making certain findings of facts which we have heretofore summarized-on the ground that they are not sustained by substantial evidence. Appellant urges that the physical facts refute the court's finding the plaintiff ‘ran into defendant's car’.
If this finding were to be construed as an assertion that plaintiff ran head on into, and hit defendant's car broadside, there would be merit to this argument of appellants.
On the other hand, it is arguable that plaintiff ran into defendant's car in a glancing manner, and we think the evidence supports this view. We are not convinced by the argument of appellant that the court erred in this respect.
The plaintiff testifying, repeatedly said she had the right of way and presumed that the defendant would stop, and appellant here invokes 1941 Comp. § 68-518. In view of the evidence that when defendant entered the intersection plaintiff was about 200 feet therefrom it is doubtful whether the cited section has any application. But assuming that it does, the presumption said to arise from having the right of way is of little value, except in case of entire absence of other evidence.
In Words and Phrases, Permanent Edition, Vol. 37, at page 673, we find the following:
“Right of way' merely means a preference to one of two vehicles asserting right of passage at same place and at approximately the same time. Cowan v. Market St. Ry. Co., 8 Cal.App.2d 642, 47 P.2d 752, 754. * * *
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...this statute, you are instructed that such conduct constituted negligence as a matter of law.' Plaintiff relies upon Langenegger v. McNally, 50 N.M. 96, 171 P.2d 316 (1946), and Lujan v. Reed, 78 N.M. 556, 434 P.2d 378 (1967), and urges the language therein shows that '* * * (e)xceeding the......
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...distance was such that there was a factual issue as to each party concerning failure to yield the right-of-way. See Langenegger v. McNally, 50 N.M. 96, 171 P.2d 316 (1946). (b) Reference to In his opening statement, Chenoweth's attorney stated there would be testimony that plaintiff was spe......
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...care to avoid a collision when she became aware of the fact that defendant would not yield the right-of-way. Langenegger v. McNally, 50 N.M. 96, 171 P.2d 316 (1946). This burden was placed on plaintiff in the above instruction. Instruction 1(a), (b) and (c) required plaintiff to keep a prop......
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