Lopez v. Townsend

• Decision Date: 24 September 1938
• Docket Number: No. 4264.,4264.
• Parties: LOPEZv.TOWNSEND et al.
• Court: New Mexico Supreme Court

42 N.M. 601

82 P.2d 921

LOPEZ

v.TOWNSEND et al.

No. 4264.

Supreme Court of New Mexico.

Sept. 24, 1938.

Appeal from District Court, Santa Fe County; M. A. Otero, Jr., Judge.

Action by Andrellita Sandoval de Lopez against Charles T. Townsend and others for the wrongful death of plaintiff's husband who was allegedly struck by an automobile. From a judgment for the plaintiff, the defendants appeal.

Affirmed.

Negligence can be established by circumstantial evidence, and where the circumstances are such as to take case out of the realm of conjecture and within the field of legitimate inference from established facts, a prima facie case is made.

George E. Remley, of Albuquerque, for appellant Scenic Stages, Inc.

Gilbert & Hamilton, of Santa Fe, for appellant American Fidelity & Casualty Co.Kiker & Sanchez, of Santa Fe, for appellee.

ZINN, Justice.

This is an appeal from a judgment in favor of plaintiff below (appellee here) in the sum of $5,000 awarded by the trial court, without jury, for the wrongful death of plaintiff's husband. The death occurred May 1, 1931.

This case has been heretofore before us on questions of law. See Lopez v. Townsend, 37 N.M. 574, 25 P.2d 809, 96 A.L.R. 342.

The defendants (appellants here) assign seventy-six alleged errors. The seventy-six are summed up under two points, as follows:

1. The evidence was insufficient to show that the death of deceased was caused by negligence of defendant Scenic Stages, Inc. (Defendant American Fidelity and Casualty Company is the insurer of its co-defendant pursuant to the provisions of Art. 10, Ch. 11, 1929 Comp.St. § 11-1001 et seq.)

2. The evidence was insufficient to show that defendant Scenic Stages, Inc., was operating as a common carrier pursuant to a certificate of convenience and necessity at the time of the accident.

Able counsel for all parties have filed voluminous briefs in the case. Plaintiff attempts to dismiss the appeal on technical grounds. It will not be necessary to discuss these in view of the result.

The defendants direct their attack upon the judgment, contending that the evidence does not point to their legal responsibility for the death of the plaintiff's husband. We have been forced to make an independent reading and study of the entire record due to the fact that we have not before us in the briefs an agreed statement of the facts.

Counsel for the defendants summarize the issues tendered by the pleadings as follows:

“1. Was the plaintiff the widow of Venceslao Lopez, deceased?

“2. Was Venceslao Lopez killed through being struck by an automobile operated by Scenic Stages, Inc.?

“3. If so, did the death of Venceslao Lopez proximately result from any of the acts of negligence alleged in the complaint?

“4. If Venceslao Lopez were so killed was he guilty of contributory negligence in any of the particulars alleged in the answers?

“5. If Venceslao Lopez were killed by being struck by an automobile operated by Scenic Stages, Inc., was the automobile being operated at that time as a common carrier under certificate of public convenience and necessity No. 44, or any other certificate issued by the State Corporation Commission?

“6. If Venceslao Lopez were killed by being struck by an automobile was it the automobile alleged in the complaint, viz., a Buick 1926 model having motor No. 191770-3?”

After a careful study of the record we believe the above to be a fair summary and classified division of the issues before the trial court.

[1] With the exception of the issue tendered by the defendants' answer of contributory negligence, the burden was on the plaintiff to prove by a preponderance of the evidence the controverted allegations of her complaint. The defendants claim that she failed in this.

On the early morning of May 1, 1931, Venceslao Lopez was found injured on the Lamy highway a few miles south of the Santa Fe Plaza. His team of horses hitched to a wagon loaded with wood stood nearby, unattended. The injured man died in an ambulance en route to a hospital in Santa Fe shortly following the discovery of his body upon the highway.

The negligence charged was in effect that the defendants drove their stage at a reckless and dangerous rate of speed; that they failed to pass to the left of the wagon (an overtaken vehicle) although there was ample room to do so but instead passed to the right of the wagon at a dangerous rate of speed and without sounding their horn; that they operated the automobile in excess of ten miles per hour although on a curve which prevented a clear view for one hundred yards ahead; that their stage was operated by an intoxicated driver; that the stage was operated in violation of city ordinances which prohibited the passing of a vehicle on the crest of a grade where the driver d6oes not have an unobstructed view of the road ahead for a distance of five hundred feet and which further prohibits the overtaking and passing of a vehicle to its right.

All of the material issues in the case were resolved in favor of the plaintiff by the trial court. This embraced a finding that the plaintiff was married to the deceased; that his death resulted proximately from injuries received when struck by an automobile operated by Scenic Stages as a public conveyance under or by virtue of a certificate of public convenience and necessity.

In addition, the trial court's findings convict the defendant, Scenic Stages, Inc., of negligence (a) in passing to the right of an overtaken vehicle (the wood wagon); (b) in driving at a speed in excess of 15 miles per hour along a highway where the curvature thereof prevented a clear view ahead by the driver for 100 yards and where, while upon said curve, the driver at no time had a clear view ahead a distance of 100 feet before striking the deceased; (c) that the automobile was operated around said curve at such speed that it could not be stopped within the distance the driver thereof could see ahead clearly; (d) that the automobile was operated at an excessive speed under the circumstances; and (e) that the driver of the automobile passed said wagon to the right when its passage to the left was open and unobstructed.

The defendants claim that the evidence is insufficient to support the findings and claim that these findings are based on conjecture. on possibilities that are not even probabilities, and that it is a case built up on guesses or presumptions on presumptions.

We do not propose to set forth in this opinion a complete review and résumé of each and every word and inference found in the evidence in order to sustain the trial court's findings of fact. It is sufficient to say that the evidence does support the trial court's material findings and conclusions. A narration of all the evidence would be of little help and unnecessarily voluminous. Some statement of the facts developed at the trial will necessarily be set forth hereafter in this opinion.

[2] It may be true that a much stronger case may or ought to have been proven. However, it is only our duty to ascertain if there is substantial evidence to support the material findings of the trial court and, if found, to sustain the judgment; if not found, to set the judgment aside.

[3] We start with the principle that negligence may be established by circumstantial evidence, and that, where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inference from established facts, then a prima facie case is made.

[4] The evidence establishes that Lopez came to his death as the result of having been struck by an automobile driven by one who failed either to stop or report the accident. We are therefore dealing with a hit and run driver, the most dangerous type of motorist on the road, one who does not give the innocent victim of his negligence even a chance for immediate medical or surgical attention if such be needed, but permits the victim to suffer if alive, and die if death be the result. Such flight is clearly a violation of the law. 1929 Comp.St. §§ 11-828, 11-862. Every legitimate inference will be drawn against such a driver.

[5][6] This is not a criminal case, however. It was not the burden of the plaintiff to prove beyond a reasonable doubt that the defendant, Scenic Stages, Inc., did, in a negligent and careless manner, kill Venceslao Lopez. It was only necessary for the plaintiff to make out a prima facie case of negligence by circumstances attending the accident. Such circumstances of their own force must render probable the fact that a driver of a Scenic Stages car, operated at the time as a public conveyance, was the responsible human agency causing the injury which resulted in the death of Venceslao Lopez. Where we reasonably can, we should view the evidence as the trial court did. We must measure the probative force of specific circumstances as evidence of what lay behind the physical cause of the death of Venceslao Lopez. We then examine the record to find therein proof of the issues.

[7] 1. Was the plaintiff the widow of the deceased?

The plaintiff testified that she was the wife of Venceslao Lopez at the time of his death. Her testimony, under oath, was believed by the trial judge. He made a finding of fact accordingly, and there is substantial evidence in the record to support this finding. We cannot upset the same.

[8][9] 2. Was the deceased killed by being struck by an automobile operated by Scenic Stages, Inc., in a negligent manner as alleged in the complaint?

Venceslao Lopez was found in a dying condition, bleeding at the mouth and nose, in the middle of a main traveled highway immediately south of Santa Fe, a little after 2 o'clock A. M., the morning of May 1, 1931. He was placed in an ambulance to be rushed to a hospital, but died in the ambulance before arriving there. The visible wounds on the body of the deceased were a cut over his eye, a skinned place on his right hand and arm and a bruised place on his right hip. The...