Lucero v. Harshey

• Court: New Mexico Supreme Court
• Writing for the Court: LUJAN, Justice.
• Citation: Lucero v. Harshey, 50 N.M. 1, 165 P.2d 587, 1946 NMSC 5 (N.M. 1946)
• Decision Date: 25 January 1946
• Docket Number: No. 4915.,4915.
• Parties: LUCEROv.HARSHEY et al.

50 N.M. 1

165 P.2d 587

LUCERO

v.HARSHEY et al.

No. 4915.

Supreme Court of New Mexico.

Jan. 25, 1946.

Appeal from District Court, Bernalillo County; Albert R. Kool, Judge.

Action by Dolores Barela de Lucero, administratrix of the estate of Bernardino C. Lucero, plaintiff's deceased husband, against Richard Thomas Harshey and another for deach of husband killed in automobile accident. From an adverse judgment, defendants appeal.

Affirmed.

In action for death of decedent whose automobile after being disabled was pulled onto the paved portion of the highway and struck by defendant's truck which on a clear day had 490 feet in which to avoid the accident, contributory negligence of decedent was for the trier of facts.

[165 P.2d 587 , 50 N.M. 2]

G. T. Watts and O. O. Askren, both of Roswell, for appellants.

Gino J. Matteucci and A. H. McLeod, both of Albuquerque, for appellee.

LUJAN, Justice.

Defendants below (appellants) state the case as follows: ‘The plaintiff, as administratrix of the estate of her deceased husband, Bernardino Lucero, filed her suit in the District Court of Bernalillo County, charging negligence on the part of the defendants in an automobile accident wherein Bernardino Lucero lost his life. The complaint is in the usual form of action under the wrongful death statute. (Tr. 1) Defendants answered by traversing the allegations of negligence and reckless conduct of defendants. (Tr. 4) And defendants answered further by way of new matter, setting up facts showing that the deceased caused his own death by his own negligent conduct; and facts showing that the deceased at least contributed to the accident by his own reckless conduct to the extent that the acts of deceased were the proximate cause of his death. The Answer further set up that the defendants took the last clear chance when confronted by the hazard of the road created by the deceased.’

The plaintiff below (appellee) accepts the foregoing statement of the case except that she asserts that ‘The Complaint contains allegations to show that the defendant had the last clear chance and that appellant driver was guilty of reckless disregard of the rights of plaintiff's intestate, and that therefore the issues made by appellee are broader and more comprehensive than are usually set up in a pleading for wrongful death.’

We find no refutation of this comment on appellants' statement of the case since there is no reply brief.

Briefly, the facts are that on or about September 23, 1944, during daylight, the decedent had one Francisco Garcia, with a team of horses hitched to a wagon, pull his automobile up on the highway, the car being headed in a westerly direction on the road, and being north of the center line on such highway. The team and wagon were directly in front of the car and had just been uncoupled at the time of the accident. The point of impact was 490 feet from the crest of the hill to the east. Young Harshey, driving his father's truck loaded with sheep and other livestock, was traveling in a westerly direction on the highway. The defendant driver came over the hill and instead of stopping, as he could have done, or passing to the left of Lucero's car, as he should have done, drove to the right, and off the pavement, running into Lucero and also hitting the right front wheel of Garcia's wagon and the right horse of the team.

The following are among the specific findings of fact made by the court in support of its conclusions of law and judgment:

4. ‘That Highway 66, Bernalillo County, New Mexico, is a paved and traveled highway through mountainous country at the place of the accident.

5. ‘That a short time before the accident the car of the deceased, Bernardino C. Lucero, had gone dead and was entirely off Highway 66 on a side road, and shortly before the accident he, the said Lucero, caused his automobile to be pulled onto said highway by horses, where it was parked on the right-hand side of the road at the time Lucero was killed.

6. ‘That said act of pulling said disabled car from a place of safety, where it had stalled on a side road, onto said highway, and parking the same on the paved part thereof was negligence on the part of the deceased.

7. ‘That on the 23rd day of September, 1944, the defendant, Richard Thomas Harshey, drove and operated a truck in a careless and negligent manner, which caused the death of Bernardino C. Lucero; that at said time and place the said Richard Thomas Harshey did not act as a careful and prudent person, and if he had so acted, he could have avoided running into and injuring the said Bernardino C. Lucero.

8. ‘That at the time and place hereinabove stated Richard Thomas Harshey was operating his father's truck under the Family Purpose Doctrine, and any negligence of the son was the negligence of L. E. Harshey.

9. ‘That the proximate cause of the death of Bernardino C. Lucero was the negligence of the defendant, Richard Thomas Harshey, and the negligence of the decedent, Bernardino C. Lucero, in having his stalled automobile parked on the highway, did not proximately contribute to the accident which caused his death.

10. ‘At the time Richard Thomas Harshey had the last clear chance and could have avoided hitting the said Bernardino C. Lucero by either stopping his truck or proceeding to pass the stalled automobile by passing to his left on the paved portion of the highway, which he had room to do.

11. ‘That said defendant Richard Thomas Harshey had a range of vision of 490 feet before he hit the said Bernardino C. Lucero, which said vision was clear and unobstructed.

12. ‘That Bernardino C. Lucero was hit by the said Richard Thomas Harshey on September 23, 1944 at about the hour of 5:40 p.m., daylight saving time, and at such time it was daylight.’

Appellants rely upon two points for reversal, as follows:

‘(1) The Court erred in holding that Bernardino C. Lucero's negligence did not contribute proximately to his death, and that the negligence of the defendant was the sole proximate cause of the accident, because the facts are substantially directly to the contrary.

‘(2) The Court erred in holding that Harshey did not exercise a last clear chance and therefore was negligent and that such was the proximate cause of the accident, because the facts are directly to the contrary.’

The two points are argued together and amount to the same thing; viz., that ...