Madsen v. Read

• Decision Date: 30 August 1954
• Docket Number: No. 5766,5766
• Citation: 1954 NMSC 86,58 N.M. 567,273 P.2d 845
• Parties: MADSEN v. READ.
• Court: New Mexico Supreme Court

Page 845

273 P.2d 845

58 N.M. 567

MADSEN v. READ.

No. 5766.

Supreme Court of New Mexico.

Aug. 30, 1954.

Carpenter, Eaton & Phelps, Roswell, for appellant.

Frazier, Cusack & Snead, Roswell, for appellee.

SADLER, Justice.

Shortly after the noon hour on March 18, 1953, at a point approximately one and one-half miles south of Roswell on Highway 285, little Judy Elaine Madsen, four and one-half years of age, was struck by defendant's pickup truck and killed in front of her home on the west side of the highway. Damages on account of her death were sought in an action instituted by her father as administrator of her estate which resulted in a verdict for the defendant on which judgment in his favor was entered in the district court of Chaves County. The plaintiff in that action complains in this Court of the judgment and as the appellant here seeks its reversal. The parties will be designated here as they were below.

It was about 12:45 o'clock p. m. on March 18, 1953, when the victim of the tragic accident resulting in her death crossed the road in front of the family home, located on the west side of Highway 285 extending outh from Roswell to the Whitcamp store and filing station, situated directly east and across the highway from her home. After purchasing the gum and candy which had occasioned her trip, the child started to cross the highway again to return home. Observing a pickup truck approaching from the south, she stood on the edge of the paving for a brief period and then started to cross the road to the rear of the pickup which had just gone by.

In the meantime the defendant, driving a pickup truck with a horse trailer attached at the rear, and accompanied by his three children, ranging from 14 to 9 years of age, was proceeding south at about 50 miles per hour and converging from a distance of 125 to 130 feet to the north on the route the child would take in crossing the highway. The mother of the child sensing danger to it had come from her house and had taken a position of watchfulness on the east side of the highway. She carried her young baby in her arms, and seeing the child about to start across the highway cried out, 'Not yet, Judy!' But she was tragically too late. The child was already on the way. She was seen to disappear behind the pickup truck proceeding north, emerging from behind it on a dead run to the opposite side of the highway, only to be struck by defendant's pickup when within two (2) feet of safety. The broken body of the child was hurried to the hospital where she was pronounced dead on arrival.

The scene of the accident was only 1.8 miles south of the city limits of Roswell, the weather was clear and the view was unobstructed for half a mile in either direction from the scene of the accident. A somewhat vivid picture of how it happened may be visualized from the testimony of Sergeant Lawrence A. Halverson, an employee of Walker Air Force Base in Roswell. He was traveling on a motorcycle behind defendant's pickup as they passed beyond the city limits of Roswell. Testifying as a witness for defendant, he was asked questions and made answers, as follows:

'Q. State your name. A Sgt. Lawrence A. Halverson.

'Q. You testified previously in this case yesterday? A. Yes sir.

'Q. Where do you live? A. Seventeen twenty-four and a half North Missouri, Roswell, New Mexico.

'Q. What is your occupation? A. I am employed at the Walker Air Force Base.

'Q. On March eighteenth, 1953 were you at or near the Whitcamp service station around noon on that date? A. Yes sir.

'Q. How were you travelling? A. South.

'Q. On what? A. On a motor vehicle.

'Q. Did you see a pickup with a horse trailer attached operated by Roger Read? A. That horse trailer and pickup were ahead of me.

'Q. Which way was that pickup travelling? A. South.

'Q. When had you first seen that pickup? A. Between McGaffey Street and the city limits.

'Q. Where was it the first time you saw it; was he ahead of you or behind you or where? A. He was passing me.

'Q. He passed you between McGaffey Street and the city limits? A. Somewhere along there.

'Q. After Mr. Read passed you was he in your vision continuously or up ahead of you continuously until the time you reached the Whitcamp service station? A. Yes sir.

'Q. How far ahead of you was he during that time? A. About three hundred feet.

'Q. Did he maintain a more or less even distance from the city limits to the Whitcamp filling station? A. Yes sir.

'Q. How fast were you going from the city limits to the Whitcamp filling station? A. Approximately fifty miles an hour.

'Q. As you approached the Whitcamp filling station did you see a pickup coming from the south going north? A. Yes sir.

'Q. Did you see a little child standing on the east side of the road out by the filling station? A. Yes sir.

'Q. At the time you saw the child where was the pickup coming north? A. It was pretty close to even with her, I cannot tell exactly.

'Q. Did you see the child start into the road? A. Yes sir.

'Q. Where was the pickup traveling north at time the child started crossing the road? A. Just after it passed.

'Q. Could you see the child after she got into the road? A. No sir.

'Q. Did you see her between the pickup coming north and the pickup going south as she crossed the road? A. No sir.

'Q. Did you see her after she started across the road until she got to the scene of the accident? A. No sir.

'Q. After the child started across the road what was the first thing you noticed at the scene of the accident? A. I noticed the trailer and the pickup jack-knifed.

'Q. What did you see when you got down to the scene of the accident? A. I noticed the little girl on the side of the road and her mother was standing beside her, she had just come up there, and Mr. Read was coming from the pickup.

'Q. Where was the pickup at that time? A. In the bar pit.

'Q. He had cut over to his right off the road? A. Yes sir.

'Q. Did you see the tracks on the black top where the child had started across the road? A. Yes sir.

'Q. Did you see the skid marks which were put down by Mr. Read's vehicle prior to the time he reached the place where the girl's tracks were? A. I saw them but did not pay any attention to them.

'Q. You did not measure them? A. No sir.

'Q. Did you notice anything about their length? A. No sir.

'Q. Could you say with certainty whether or not there were seventy-nine yards of skid marks prior to that point?

'Mr. Carpenter: We object as the witness has shown himself not qualified to answer, he did not pay any attention to them and did not measure them.

'The Court: Sustained.

'Mr. Snead: We except.

'Q. Could you tell how far north of the point where the child came across Mr. Read's pickup was at the time she started across the road? A. No sir I could not tell you.'

Another witness for defendant, Mrs. John Ernest, who had waited on the child while in the store and had accompanied her almost to the edge of the paving, gave a dramatic summary of what happened, as follows:

'Q. State in your own words what happened from the time the child stopped by the side of the highway until she was hit? A. Well, when she got to the highway and the big bus was coming from the North she waited for it, and there were two cars coming and she waited for them, there was a pickup coming from the South and she waited for it and when it passed she literally flew as she ran and her mother was calling, 'Not yet, Judy, not yet, Judy,' and she ran right in front of the pickup coming from the North.'

Still another witness for defendant, E. J. James, who had been on the stand prevously, testified:

'Q. You testified, I believe, that on March eighteenth, 1953, at the time of this accident you were approaching Whitcamp's service station from the South on highway 285 in your pickup? A. Yes sir.

'Q. As you approached the service station, I believe you testified you saw the child standing here right on the East side of the road when you were about a city block away? A. Yes sir.

'Q. Did you see the pickup with the horse trailer attached driven by Roger Read as you came up to the station? A. I did not notice him until after I passed the station.

'Q. He was coming from the North going South on that highway? A. Yes sir.

'Q. After you passed the little girl did you see her or do you know what she did after that time? A. No sir.

'Q. How far North of the place where the child was standing were you at the time you met Mr. Read's pickup? A. That would be hard for me to say, probably a hundred to a hundred and fifty feet; I was driving pretty slow at the time.

'Q. Did you go back to the scene of the accident a short time later? A. Yes sir.

'Q. After you passed the place where the child was standing and passed Mr. Read's vehicle, what was the first thing you noticed in the West? A. I just happened to look in my rear view mirror and noticed the cloud of dust and I could not see anything for the dust flying up and I thought at the time he probably ran off the road and nearly turned over.

'Q. What did you do after that? A. I turned around and drove back up.

'Q. Approximately how far North of the place where the child was standing were you at the time you made your turn and came back? A. Maybe a city block or a little farther.

'Q. What did you find when you got back to the scene there across from the Whitcamp's service station? A. The car and pickup were off the highway and the little girl was laying on the black top.'

'* * *

'Q. At the time you met Mr. Read's vehicle and he passed you coming South, was his vehicle skidding at that time? A. No sir.'

And on cross-examination, he testified:

'Q. Was there anything there that you saw that could have obstructed the view of Mr. Read coming south in advance of the time he got to the child that would have prevented him from seeing the child? A. No, sir, other than my pickup.

'Q. But that would be momentary, would it not, because you were going north and he was going south; that would be momentary would it not? A. ...