Lucero v. Torres

• Decision Date: 04 April 1960
• Docket Number: No. 6535,6535
• Citation: 1960 NMSC 34,350 P.2d 1028,67 N.M. 10
• Parties: Anthony Ely LUCERO, a minor, by his father and next of friend, Antonio Lucero; and for himself, Antonio Lucero, Plaintiffs-Appellants, v. Juan J. TORRES, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 1028

350 P.2d 1028

67 N.M. 10

Anthony Ely LUCERO, a minor, by his father and next of friend, Antonio Lucero; and for himself, Antonio Lucero, Plaintiffs-Appellants, v. Juan J. TORRES, Defendant-Appellee.

No. 6535.

Supreme Court of New Mexico.

April 4, 1960.

Lorenzo A. Chavez, Arturo G. Ortega, and Melvin L. Robins, Albuquerque, for appellants.

Schall & Sceresse, Albuquerque, for appellee.

CHAVEZ, Justice.

The action is for personal injuries. From a judgment based on a jury verdict for the defendant, plaintiff appeals.

Rio Grande Boulevard is a much traveled public thoroughfare running north and south in the city of Albuquerque. At the approximate point where this cause of action arose, the roadway was 19 feet and 10 inches in width. It has since been widened. It is flanked by residences on both the east and west boundaries. There were no intersections or traffic control signals in the immediate proximity; and there is not any indication of the existence of public street lighting devies at the situs.

It was dusk, shortly before eitht o'clock on the night of July 20, 1956, when the plaintiff-appellant, a boy eight years of age, left the home of his aunt, located on the west side of the boulevard, and proceeded to cross to the east side thereof where his parents resided. Simultaneously, the defendant-appellee was driving his 1941 Ford automobile with headlights on, at a speed of approximately 20 miles per hour, in a northerly direction on the said boulevard, when the appellant suddenly and initially appeared, directly in the path of appellee's car. Appellee applied his brakes, shouted 'Look out' in Spanish, turned his automobile to the right and skidded into the appellant, throwing the child to the pavement, whereby he suffered personal injuries. Appellant does not remember whether he looked to the right or to the left before entering the street and remembers nothing concerning the accident subsequent to setting foot upon the west side of the boulevard. There were no eyewitnesses to the collision. There was another car ahead of appellee's vehicle about two car lengths ahead and its lights were on. It had been raining.

Under Point One appellant contends that the court erred in instructing the jury, over his objection, on the doctrine of unavoidable accident.

Instruction No. 14 reads as follows:

'One of the defenses of the defendant, in these cases, is that the accident was an unavoidable accident. If you find from the evidence that the accident, and resulting injury complained of, was one which by the exercise of reasonable care the defendant could not have reasonably been expected to foresee and prevent, then it belongs to that class of occurrences which in law is denominated as purely accidental and for which no liability exists. The defendant has the burden of establishing this defense, by a preponderance of the evidence.'

The issues raised by appellant respecting unavoidable accident are twofold. The first is whether or not the charge was a correct statement of the law, and the second is whether there is sufficient evidence of record to support the trial court's instruction on unavoidable accident. Before we proceed to consider appellant's first point, it is necessary to review appellant's right to raise an appeal on this issue. We think not. At the trial of this action, appellant failed to specifcally object to the instruction on unavoidable accident on the ground that it was inaccurate statement of law. On appeal, he now contends that the trial court erred in giving an inaccurate charge. Appellant's objection was as follows:

'Objects to the Court's Instruction Number 14, on the issue of an unavoidable accident, on the ground that the evidence does not justify the giving of such an instruction; that there was a clear showing of negligence on the part of the defendant, and that to submit this issue to the jury unduly emphasizes the burden on the plaintiffs through their case to their prejudice.'

Appellant's objection on this point is not timely under Rule of Civil Procedure 21-1-1(51)(g), which states:

'For the preservation of any error in the charge, objection must be made or exception taken to any instruction given; or, in case of a failure to instruct on any point of law, a correct instruction must be tendered, before retirement of the jury. Reasonable opportunity shall be afforded counsel so to object, except or tender instructions.'

Appellant, therefore, cannot at this time raise the issue since he has failed, by proper objection, to preserve the error, if any, of the lower court. The objection served only to raise the second issue on appeal respecting unavoidable accident, that is, the instruction was not supported by the evidence.

It is clearly evident that the trial court was not apprised of the inaccuracy of its instruction, as being an incorrect statement of the law of unavoidable accident, by the objection made by appellant.

Appellant, in his brief, claims error because the court's instruction failed to include the proposition that both parties had to be free from negligence, and that if the unforeseeability was a result of defendant's negligence, then the doctrine of unavoidable accident does not apply. However, appellant failed to point out to the trial court this claimed error.

In the case of State v. Compton, 57 N.M. 227, 257 P.2d 915, 921, we said:

'The primary purpose of any objection to an instruction is, of course, to alert the mind of the judge to the claimed error contained in it, to the end that he may correct it. This fundamental purpose must be read into any and all rules on the subject. * * * But, where the court has instructed erroneously on the subject, although a correct instruction has been tendered on the point, if it leaves it doubtful whether the trial judge's mind was actually alerted thereby to the defect sought to be corrected by the requested instruction, the error is not preserved unless, in addition, the specific vice in the instruction given is pointed out to the trial court by proper objection thereto.'

Similarly, in State v. Blevins, 39 N.M. 532, 51 P.2d 599, 600, we said:

'Under rule 70-108 of the trial court rules, it was incumbent upon the appellant either to object to the instruction given and point out the error, or to tender one framed to present his theory. Laws v. Pyeatt, 40 N.M. 7, 52 P.2d 127. Having failed to do either, he cannot now complain.'

And in State v. Baize, 64 N.M. 168, 326 P.2d 367, 368, we stated:

'We have held time and again a defendant must call the attention of the trial court to any claimed error in the instructions by appropriate objection before they may obtain a reversal on account of such error.'

See, also, State v. Richardson, 48 N.M. 544, 154 P.2d 224; State v. Smith, 51 N.M. 328, 184 P.2d 301; State v. Lopez, 46 N.M. 463, 131 P.2d 273. The rule is equally applicable to civil as well as criminal cases.

We now pass to appellant's second premise that the trial court's instruction on unavoidable accident was error on the ground that the evidence does not justify the giving of such an instruction. Appellee affirmatively pleaded that the accident complained of was unavoidable. There is evidence in the record bearing upon this point. We have repeatedly held that a party is entitled to an instruction on the theory of his case upon which there is evidence. State v. Martinez, 30 N.M. 178, 230 P. 379; Salazar v. Garde, 35 N.M. 353, 298 P. 661; State v. Hughes, 43 N.M. 109, 86 P.2d 278; Clay v. Texas-Arizona Motor Freight, Inc., 49 N.M. 157, 159 P.2d 317; State v. Jones, 52 N.M. 235, 195 P.2d 1020; Stewart v. Oberholtzer, 57 N.M. 253, 258 P.2d 369; Hanks v. Walker, 60 N.M. 166, 288 P.2d 699; See also, Graham v. Consolidated Motor Transport Co., 112 Cal.App. 648, 297 P. 617-618; Wilson v. Roach, 101 Okl. 30, 222 P. 1000.

In Hanks v. Walker, 60 N.M. 166, 288 P.2d 699, 701, we state the rule as follows:

'In this jurisdiction, it is prejudicial error to refuse to instruct specifically on a litigant's theory of the case, providing such theory is pleaded and there being evidence to support it.'

The court presented to the jury the issues of negligence alleged by appellant and the issue of contributory negligence and unavoidable accident asserted by appellee. All of these issues were controverted issues of fact to be passed upon by the jury. The appellee denied negligence on his part, and there is reasonable evidence in the record which, if believed, will support his denial. The jury might rightfully find as to him, that the accident was unavoidable. We believe that in a case where the issues of negligence, contributory negligence and unavoidable accident are present, and the evidence being in conflict as to the issue of negligence and contributory negligence, the jury may conceivably find, with evidentiary support, that neither the appellant nor the appellee were negligent. There being questions present for the jury to decide as to whether appellee or appellant were negligent, or whether both or neither were negligent, we believe that in such a case, an unavoidable accident instruction is appropriate.

Gaylord v. Schwartz, 46 Wash.2d 315, 281 P.2d 247, was a case involving a thirteen-year-old boy who was riding a bicycle on a raised wooden sidewalk along one side of a bridge. The defendant, driving his truck along the bridge in the same direction, approached the bicycle from the rear, the two vehicles came into collision and the boy was injured. The jury returned a verdict for defendants, and judgment was entered dismissing the action. Plaintiff appealed. The only question before the court on appeal was whether the trial court erred in giving an instruction on unavoidable accident.

The court held that appellant was correct in asserting that an instruction on unavoidable accident is authorized only when the evidence shows or justifies an inference that an unavoidable accident has occurred, as that term has been...