Marr v. Nagel, 5744
| Citation | 1954 NMSC 71,58 N.M. 479,272 P.2d 681 |
| Decision Date | 14 July 1954 |
| Docket Number | No. 5744,5744 |
| Parties | MARR v. NAGEL. |
| Court | Supreme Court of New Mexico |
Iden & Johnson, Albuquerque, for Eugene Nagel.
Joseph L. Smith, Arturo G. Ortega, Albuquerque, for cross-appellants Russell.
Vance Mauney, Albuquerque, for cross-appellant and appellee Tapia.
Lorenzo A. Chavez, and Benigno C. Hernandez, Jr., Albuquerque, for Robert M. Marr.
Simms & Modrall, and George T. Harris, Jr., Albuquerque, for Frank Cohn.
This is an appeal from the District Court involving a jury trial, and orders and judgments regarding several parties entered with respect thereto, all arising from a four car collision, and is before us on motions to dismiss appeals.
Plaintiff, Robert M. Marr, filed suit against the defendants, Eugene Nagel, Allan Stamm, Frank Cohn, and the administrator of the Estate of John N. Tapia, Jr. The action against Stamm was early dismissed, and he will no further be referred to as a party. Then J. V. Russell and Opal Russell, his wife, filed their complaint in intervention against the above named defendants. Then the administrator of the Tapia Estate filed a cross claim against the defendant Nagel. The issues raised by the pleadings revolve about the question of negligence of the parties, and claims for damages and related matters.
Briefly the facts appear to be that this four car collision occurred on Highway 85 between Santa Fe and Albuquerque on October 6, 1951, around 7 P.M., it being apparently dark and the cars apparently had their headlights turned on. The automobile driven by John N. Tapia, Jr., was in the lead of three south-bound cars approaching a bridge. The automobile of plaintiff, Robert M. Marr, was following the Tapia car. The defendant Frank Cohn's car was following the Marr car. The Cohn car started to overtake and did pass the Marr car, when there appeared on the scene the north-bound truck of defendant, Eugene Nagel, whereupon the Cohn car pulled back into the right lane of traffic in front of the Marr car just passed, and behind the Tapia car which had been ahead of the Marr car. About this time the north-bound Nagel truck side-swiped the lead south-bound Tapia car, and the Nagel truck continued northward sideswiping also the second south-bound car, which was the Cohn car, and continued northerly to his left side of the road and struck the third south-bound car, being the Marr car, which by then was practically stopped, having slowed up after the Cohn car passed and pulled in front of the Marr car and behind the Tapia car. The accident resulted in death to Tapia, personal injuries to plaintiff Marr and intervener Opal Russell, who was a passenger in the Marr car.
The jury's verdict in the form of answers to special interrogatories was as follows:
'Special Interrogatories
'1. Do you find the collision between the vehicle driven by the Defendant Nagel and that driven by John N. Tapia, Jr., deceased, was an unavoidable accident?
(Yes or No) No
'2. Do you find that the collision between the vehicle operated by the Defendant Nagel and the vehicle operated by the Plaintiff Marr, was an unavoidable accident?
(Yes or No) No
'(If you answer both Number 1 and Number 2 'Yes', do not answer any further interrogatories.
'3. Do you find that the Defendant Nagel was negligent as regards his collision with the Defendant Tapia's vehicle, and do you further find that said negligence was the proximate cause of the death of John N. Tapia, Jr., deceased?
(Yes or No) Yes
'4. Do you find that as regards the collision between the Nagel and Tapia vehicles, the decedent Tapia was negligent, and that such negligence caused or contributed to the causing of said collision?
(Yes or No) No
'5. Do you find that the Defendant Nagel, as regards the collision between the Nagel and the Marr vehicles, was negligent, and do you further find that such negligence was the proximate cause, or a proximate contributing cause to such collision?
(Yes or No) Yes
'6. Do you find that John N. Tapia, Jr., was negligent as to the collision between the Tapia car and the Nagel truck, and do you further find that such negligence on the part of Tapia contributed to or was the proximate cause of the collision between the Nagel truck and the Marr vehicle?
(Yes or No) No
'7. Do you find that the Defendant Cohn was negligent, and do you further find that the Defendant Cohn's negligence was the proximate cause or a contributing proximate cause to the collision between the Nagel and the Marr vehicles?
(Yes or No) Yes
'8. Do you find that the Plaintiff Robert M. Marr, was negligent, and do you further find that such negligence was a contributing cause to the collision between the Nagel and Marr vehicles?
(Yes or No) No
'9. If you find any or all of the Defendants negligent in the collision involving the Marr car and the Nagel truck, and that such negligence on the part of each Defendant was either the proximate cause or a contributing proximate cause to the collision between the Nagel and Marr vehicles, specify the damages proximately suffered by each of the following parties:
Robert M. Marr: $10,000.00
Opal Russell: $2,000.00
J. V. Russell: $ None
'10. If you find that the Defendant Nagel was negligent, and that his negligence was the sole proximate cause of the collision between him and John N. Tapia, Jr., deceased, and that John Tapia was not negligent, specify the damages suffered by John Tapia's Estate.
$15,000.00'
The trial court granted defendant Cohn's motion for judgment notwithstanding the special verdict rendered against him as one of the defendants and in favor of plaintiff Marr and intervener Opal Russell.
The first legal proposition raised is by motion filed in this court by defendant-appellee Cohn seeking to dismiss the appeal of Nagel and cross-appeal of Russells, claiming no appellate jurisdiction in that said appeal was not perfected, Cohn's contention is that an appeal from an order granting a motion for judgment notwithstanding verdict must be applied for within twenty days from the entry of the judgment or order, pursuant to the provisions of Rule 5(2) of the Supreme Court Rules, providing in part as follows:
* * *
* * *
'Application for allowance of appeal under the provisions of this section must be made within twenty days from the entry of the judgment, order, decision, or conviction appealed from.' (Emphasis ours.)
On the other hand, Rule 5(1) of the Supreme Court Rules provides as follows:
(Emphasis ours.)
From a time element standpoint, admittedly the appeal was not perfected if Rule 5(2) is controlling, but was perfected if Rule 5(1) is controlling.
A brief review of what the record discloses as to this matter seems pertinent. On April 29, 1953, there was entered an instrument signed by the trial judge entitled 'Order for Judgment of Dismissal of Defendant Frank Cohn Notwithstanding Special Verdict,' the pertinent parts of the order for the purpose of this point reading as follows:
'Ordered, Adjudged and Decreed that the Defendant Frank Cohn's motion for judgment of dismissal notwithstanding the special verdict is granted, and it is, therefore
'Ordered that judgment be and the same hereby is entered dismissing with prejudice the action of Plaintiff and of the Intervenors herein, notwithstanding the special verdict of the jury, and
'It Is Further Ordered that the Defendant Frank Cohn have and recover from Plaintiff and Intervenors said Defendant's costs and disbursements herein, to be taxed by the Clerk of this Court; to all of which opposing counsel except and object.' (Emphasis ours).
On the same day, April 29, 1953, there was entered an instrument signed by the trial judge entitled 'Judgment' and providing and reciting insofar as is pertinent hereto as follows:
'* * * and the Court having granted defendant, Frank Cohn's Motion for Judgment notwithstanding veredicto * * *'
followed by the language:
'It Is Further Ordered, Adjudged and Decreed that the intervenor, J. V. Russell, have nothing against the defendants, * * * Frank Cohn.'
and concluding:
'It Is Further Ordered, Adjudged and Decreed That Plaintiff, Robert M. Marr, and intervenor, Opal Russell, have...
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