Lopez v. Maes

• Decision Date: 19 June 1970
• Docket Number: No. 392,392
• Citation: 472 P.2d 658,1970 NMCA 84,81 N.M. 693
• Parties: Rufina P. LOPEZ, Administratrix of the Estate of Frank C. Lopez, deceased, Plaintiff-Appellant, v. Eduardo MAES and Mabel Gallegos, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 658

472 P.2d 658

81 N.M. 693

Rufina P. LOPEZ, Administratrix of the Estate of Frank C.

Lopez, deceased, Plaintiff-Appellant, v. Eduardo MAES and Mabel Gallegos, Defendants-Appellees.

No. 392.

Court of Appeals of New Mexico.

June 19, 1970.

Certiorari Denied July 20, 1970.

Avelino v. Gutierrez, Albuquerque, for appellant

Mary C. Walters, Toulouse, Moore & Walters, Albuquerque, for appellee Eduardo Maes.

Robert W. McCoy, Hal Simmons, Albuquerque, for appellee Mabel Gallegos.

OPINION

OMAN, Judge.

This is a suit by plaintiff for the alleged wrongful death of decedent, Frank C. Lopez. Our Wrongful Death Act appears as §§ 22--20--1 and 3, N.M.S.A.1953, and §§ 22--20--2 and 4, N.M.S.A.1953 (Supp.1969). Plaintiff appeals from a judgment in favor of defendants entered pursuant to a jury verdict. We affirm.

Briefly, the facts surrounding the events which led to the filing of the complaint are:

(1) Some time after midnight on October 15, 1966, decedent apparently started across U.S Highway 85 from east to west in front of the Double Q Bar in Los Lunas, New Mexico.

(2) Defendant Maes was driving north on the highway at a speed of about 40 miles per hour with his headlights on high beam. He observed a shadow-like object dart in front of his car from the east at just about the moment he struck decedent.

(3) Maes brought his vehicle to rest off the highway and immediately started to get out and return to the body of decedent, which had been thrown into the south bound traffic lane. At this time he saw the lights of a vehicle coming south on the highway. He ran back to the body of decedent, observed it briefly, and then tried to attract the attention of the driver of the approaching vehicle by waving his arms. When he saw the vehicle was not going to stop he jumped to the side of the road.

(4) The approaching vehicle was being driven by defendant Gallegos. A passenger in her vehicle exclaimed there was something on the road. About this time Gallegos saw Maes waving his arms, and then she felt a bump caused by her vehicle passing over the body. She did not see the body prior to running over it.

(5) Another vehicle also ran over the body. There is some confusion as to whether this was just before or after Gallegos had run over it, but apparently it was afterwards.

(6) There is no evidence as to whether decedent was alive or dead at the time Gallegos ran over his body, except that Maes observed no sign of life during the brief period between his arrival at the body and the time Gallegos ran over it. Plaintiff first contends the trial court erred in refusing to give her requested instruction on last clear chance. There is no dispute as to the requisite elements, or factual matters, which must have existed before the issue of last clear chance was presented. They are: (1) Decedent must have been negligent. (2) As a result of his negligence he must have been in a position of peril from which he could not have escaped by the exercise of ordinary care. (3) The defendants knew or should have known of decedent's peril. (4) The defendants must then have had a clear chance, by the exercise of ordinary care, to avoid the injury, and they must have failed to do so. Burnham v. Yellow Checker Cab, Inc., 74 N.M. 125, 391 P.2d 413 (1964); Floeck v. Hoover, 52 N.M. 193, 195 P.2d 86 (1948).

Plaintiff urges that because Maes was driving at 40 miles per hour with his lights on high beam and there was also some light from other sources, and particularly from the Double Q Bar across the highway, the jury could properly have disbelieved his undisuted testimony that decedent darted from the east like a shadow directly in front of the Maes vehicle, and could have found Maes either saw decedent, or by the exercise of ordinary care should have seen him, and thereafter, by the exercise of ordinary care, Maes had a clear chance to avoid the injury to decedent.

In our opinion, the matters relied upon by plaintiff are not sufficiently substantial, or the inferences deductible therefrom sufficiently reasonable, to have warranted the giving of an instruction on the doctrine of last clear chance, insofar as Maes is concerned. The jury would not have been justified under New Mexico law in disregarding his undisputed testimony as to the sudden appearance and rapid movement of decedent directly into the path of his vehicle. Maes was not impeached by direct evidence of his lack of veracity, by evidence of his bad moral character, or by any other legal method of impeachment; his testimony was not equivocal and contained no inherent improbabilities; there were no suspicious circumstances surrounding the accident, or his testimony in relation thereto; and no legitimate inferences could be drawn from the facts and circumstances of the case which would contradict or cast reasonable doubt upon the truth or accuracy of his testimony as to the unexpected and sudden, shadow-like appearance of decedent directly in front of the vehicle. In the absence of one or more of these circumstances, it has been repeately held the trier of the facts may not disregard the undisputed relevant testimony of a witness on a material issue. Aragon v. Boyd, 80 N.M. 14, 450 P.2d 614 (1969); Galvan v. Miller, 79 N.M. 540, 445 P.2d 961 (1968); Bank of New Mexico v. Rice, 78 N.M. 170, 429 P.2d 368 (1967); Frederick v. Younger Van Lines, 74 N.M. 320, 393 P.2d 438 (1964); Medler v. Henry, 44 N.M. 275, 101 P.2d 398 (1940).

It is apparent the evidence would not have supported a finding that Maes had a clear chance, by the exercise of ordinary care, to avoid striking decedent. Therefore, the refusal of the instruction as to him was not only proper but necessary. Compare Monden v. Elms, 73 N.M. 256, 387 P.2d 458 (1963); Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028 (1960); McCoy v. Gossett, 79 N.M. 317, 442 P.2d 807 (Ct.App.1968).

The factual situation in Burnham v. Yellow Checker Cab, Inc., supra, upon which plaintiff particularly relies, is so unlike the factual situation in the present case, that the reasoning underlying the holding in the Burnham case, as to the sufficiency of the evidence to raise the issue of last clear chance, is not applicable here.

Plaintiff also claims that the issue of last clear chance was raised by the failure of Maes to remove decedent's body from the highway before it was struck by Gallegos. She has cited no authority in support of this claim. We are of the opinion plaintiff must fail in this contention for at least two reasons:

(1) At the most, Maes was by the body for a period of ten seconds, and the Gallegos vehicle was approaching rapidly. During this time Maes looked at the body, observed no evidence of life, and then began his efforts to warn the driver of the danger. Even if it could be said that Maes had a duty to remove the body from the highway, which we need not decide, certainly it cannot be said that under the stress of the circumstances, and in view of the very brief time he had in which to determine what course to pursue, he had a clear chance, by the exercise of ordinary care, to remove the body from the highway and the immediate peril which was threatening his safety as well as the safety of decedent's body.

(2) There is absolutely no evidence in the record to support a finding that decedent was killed by the Gallegos vehicle, or that it in any way contributed to the death. The death is the injury with which we are here concerned, and, in the absence of any evidence to show this injury resulted from the body being run over by the Gallegos vehicle, Maes' failure to remove the body from the highway cannot possibly be said to have proximately caused this injury.

As to defendant Gallegos, we also hold the requested instruction was correctly denied. There is doubt as to whether the evidence relative to her running over decedent's body was sufficient to warrant the submission to the jury of the issue of last clear chance, even if this had been the injury with which we were concerned. However, we need not and do not base our decision on this doubt, but assume the evidence was sufficient to have raised the issue before the jury had there been evidence from which the jury could have found the injury was caused, or at least contributed to, by the act of Gallegos.

As above stated, this is a suit for wrongful death. Our Wrongful Death Act expressly provides that the basis of liability thereunder is the death of a person '* * * caused by the wrongful act, neglect or default of another, * * *' Section 22--20--1, supra. Insofar as Gallegos is concerned, plaintiff alleged in her first amended complaint that Gallegos was driving her motor vehicle '* * * in a southerly direction in such a negligent and careless manner as to * * * strike plaintiff's decedent violently and to cause his death. * * *' and '(t)hat as a proximate result of (her) negligence and carelessness * * *, plaintiff's decedent was killed * * *' These allegations were denied by Gallegos. Thus, the burden was on plaintiff to not only show Gallegos was negligent, but that her negligence was the proximate cause, or at least a concurring proximate cause of the death. This she failed to do.

As above stated, there is absolutely no evidence in the record to show that decedent was alive at the time his body was run over by the Gallegos vehicle, and no evidence to show this act by Gallegos in any way contributed to the death. Gallegos has raised, by way of a separately stated point in her answer brief, this question of the failure of plaintiff to prove Gallegos' act in running over the body was a proximate cause of the death.

Plaintiff contends in her reply brief that Gallegos could properly raise this question only by way of cross-appeal, which she failed to take. We disagree. If proximate cause is not the only reason or justification for, or the primary principle involved in, the doctrine of last clear chance, it is at least an important one; and, in any event, the doctrine's...