Maestas v. Christmas, 6195

• Decision Date: 04 February 1958
• Docket Number: No. 6195,6195
• Parties: Ufemla M. MAESTAS, Administratrix of the Estate of Jose M. Maestas, Deceased, Plaintiff-Appellee, v. Ace CHRISTMAS, Jr., Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 631

321 P.2d 631

63 N.M. 447

Ufemla M. MAESTAS, Administratrix of the Estate of Jose M Maestas, Deceased, Plaintiff-Appellee, v. Ace CHRISTMAS, Jr., Defendant-Appellant.

No. 6195.

Supreme Court of New Mexico.

Feb. 4, 1958.

E. Forrest Sanders, Las Cruces, David Chavez, Jr., Santa Fe, for appellant.

Joseph M. Montoya, Edwin L. Felter, Santa Fe, for appellees.

SWOPE, District Judge.

This is an appeal from a judgment entered by the District Court of Santa Fe County in an action by the plaintiff under the wrongful death statute in which she was awarded a recovery against defendant by the jury. The appellant here was the defendant below and the appellee, who is the widow and administratrix of the estate of Jose M. Maestas, deceased, was the plaintifff. The parties will be designated here as they were below.

This action arose out of an accident which occurred on October 31, 1953, in Cebolla, New Mexico, which is a village located in Rio Arriba County on U. S. Highway 84, when an automobile being driven by the defendant collided with Maestas, who was a pedestrian, thereby causing his death. The action was originally filed in Rio Arriba County but, by stipulation of the parties, was tried in Santa Fe County.

The evidence shows that on October 31, 1953, Maestas and Frank Villalovas were scheduled to collect tickets and to operate the projector, respectively, at the showing of a motion picture to be held that night at the school house in Cebolla. Therefore, after having supper early that evening, Maestas, Villalovas and Maestas' daughter, who planned to attend the movie, left for Cebolla from Maestas' home, which was located about six miles from Cebolla, in an automobile being driven by Villalovas. Upon arriving at Cebolla, Villalovas stopped to obtain gasoline at a filling station located near the center of the village on the west side of U. S. Highway 84. Maestas then got out of the automobile, taking with him a cigar box he intended to use later in connection with collecting the tickets, and walked across the Highway to a Bar located on its east side. At that time the stretch on Highway 84 which went through Cebolla had been designated by the New Mexico State Highway Department as no-passing zone and, accordingly, three lines, a broken white line with two solid yellow lines on each side of it, had been painted down the center of the Highway by employees of the Department.

After obtaining the gasoline, Villalovas and Maestas' daughter continued on to the school house which, like the bar, was located across the highway on the east side within walking distance north of the bar, Maestas entered the bar about 7:00 p.m. and engaged in conversation with several friends he had not seen for some time. Although Maestas was a long-time resident of that area, he had been away herding sheep in Utah. Finally, Maestas purchased a pint of whiskey, with the financial aid of his friends, and invited some of his friends to join him in having a drink. While in the bar, Maestas danced a jig and also attempted to persuade one of his friends to attend the movie and, when he refused, engaged in a friendly scuffle with him. The bar owner then suggested that Maestas go to the school and collect the tickets whereupon at about 7:30 p.m., Maestas left the bar with his cigar box and the pint bottle which was still about half full of whiskey. As he left the bar, he stated that he was going to the school house to sell tickets.

At about the same time, the defendant was driving his station wagon in a southerly direction on U. S. Highway 84. He had been attempting to pass a slow moving pickup truck for several miles but had been unable to do so because of the hills and oncoming traffic. The headlights on both vehicles were on as it was dark. Upon reaching the straight stretch of highway through Cebolla, the defendant increased the speed of his automobile and crossed from the right to the left lane over the yellow no-passing lines, which he claims he did not see for some unexplained reason, and had pulled up even with the pick-up truck in the process of passing it when he suddenly saw Maestas about three feet in from the left edge of the paved portion of the highway. He claims that Maestas was not looking to the left or right, and that, in spite of the fact that the defendant immediately applied his brakes causing the tires to make a loud noise and swerved to the right as soon as he was able to do so as a result of the pick-up moving forward in the right lane, Maestas continued to walk directly west across the highway, neither looking to the left or right, and was finally struck about one and one-half feet left of the center line with the left side of defendant's station wagon. The defendant admitted, however, that he never sounded his horn and that prior to the accident Maestas apparently saw the pick-up truck in the right lane and did not see the defendant or anticipate that defendant would attempt to pass the pick-up at that point in the left lane. Apparently, Maestas died instantly as a result of his injuries consisting, among other things, of a fractured skull and neck and a compound fracture of the left leg. It should be noted, as pointed out by the plaintiff, that the physical facts conflict with the defendant's claim that Maestas was walking across the highway and indicate that he probably was walking north towards the school house when he was struck.

There are two principle questions involved in this appeal. The first one involves certain instructions given by the trial court to the jury to the effect that if they found from a preponderance of the evidence that the defendant had turned from the right driving lane of the highway over into the left driving lane at a place which was marked by appropriate markings by the New Mexico State Highway Department to indicate there was a no-passing zone, and that such markings were visible to an ordinarily observant man, then the jury should find the defendant guilty of negligence per se. The defendant claims that these instructions were erroneous and prejudicial because, even assuming that he did commit these acts, he did not violate any law and, for that reason could not have been guilty of negligence per se. In this connection, Sec. 64-18-14, N.M.S.A.1953 provides as follows:

'The state highway commission is hereby authorized to determine those portions of any highway where overtaking and passing or driving to the left of the roadway would be especially hazardous and may by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when such signs or markings are in place and clearly visible to an ordinarily observant person every driver of a vehicle shall obey the direction thereof.'

The record also shows that after the enactment of the above statute and prior to the accident involved here, the New Mexico State Highway Department had promulgated certain rules and regulations which set forth the type, size, color and meaning of the various traffic control markings that would be used by the department on the highways but, at the time of the accident these rules and regulations had not been filed with the librarian of the New Mexico Supreme Court Library. Among other things, these rules provide that all no-passing zones in opposite directions will be marked with a solid yellow barrier line on each side of a broken white line as was done in the present case. The defendant argues that, under the provisions of Secs. 4-10-13 through 4-10-19, N.M.S.A.1953, rules and regulations of the various state departments are not effective until they have been filed with the librarian. However, a careful reading of these statutes reveals that they do not provide that all unfiled unles and regulations are ineffective but merely provide that such rules and regulations shall not be valid as against any person who does not have actual knowledge of their contents. Therefore, since the defendant admitted at the hearing that he understood the significance of yellow barrier lines on the highways and that they designated no-passing zones, his argument that he did not violate the law and was not guilty of negligence per se has no merit. As a matter of fact, the only excuse the defendant offered at the...