Marrujo v. Martinez, 6447
| Decision Date | 16 January 1959 |
| Docket Number | No. 6447,6447 |
| Citation | 65 N.M. 166,1959 NMSC 4,334 P.2d 548 |
| Parties | Jose M. MARRUJO, Administrator of the Estate of Anna Marie Marrujo, Deceased, Appellant, v. Arturo MARTINEZ, Appellee. |
| Court | New Mexico Supreme Court |
Bigbee & Stephenson, Matias A. Zamora, Santa Fe, for appellant.
Noble & Noble, Las Vegas, for appellee.
This is a wrongful death action brought by the plaintiff-appellant, which was tried to the court without a jury and resulted in a judgment being entered in favor of the defendant-appellee. The parties will be referred to as they appeared in the trial court.
During the trial of the case and after the plaintiff had rested, the defendant moved to dismiss and this motion was denied. Subsequently, after the close of the defendant's case, the motion was renewed and the court reserved its ruling until the close of argument. The record thereafter is silent as to whether the court ruled upon the motion or merely entered its judgment on the basis of the facts presented. In the absence of any showing in the record of a specific ruling by the court on this motion, it must be presumed that the court failed to so rule and merely rendered its decision and judgment on the case as a whole.
The facts of the case as found by the trial court and which are not specifically attacked in this court are as follows: On October 4, 1956, at about 4:30 p. m., the defendant was driving a 1955 Chevrolet pickup on a State highway in Mora County. This highway is a graded dirt-surface road and the defendant was driving on his right-hand or southerly side of the road at a reasonable rate of speed of approximately 35 miles per hour. The deceased, a 7-year-old child, attending the second grade of the Mora County public school, was standing, together with her 9-year-old sister and two other children, off the traveled portion of the highway beside some mail boxes. The mail boxes were located approximately six feet or more beyond a drainage ditch which ran along the north side of the traveled portion of the highway. The defendant saw the children when he was about 75 yards away, standing still beside the mail boxes. The children remained standing beside the boxes until the defendant reached a point between 75 and 115 feet away from the boxes when suddenly the deceased, Anna Marie Marrujo, ran across the road directly in front of the pickup. The defendant immediately applied his brakes and commenced to skid along the right side or southerly edge of the road until his front wheels went into the drainage ditch of a depth of about a foot and a half and overturned on its left side. The pickup had almost come to a stop just prior to the accident, but struck the little girl and she was killed. The court found that had the defendant released his brakes to stop his skidding, he would have struck the child sooner than he did. Until the child actually started running across the road, there was no indication that the children would leave their place of safety or would move in anywise. Just before the deceased started across the highway, she was warned not to do so, but disregarded the warning. To complete the picture, it should also be mentioned that the deceased was in the second grade in a school approximately a quarter of a mile from the scene of the accident and had walked to and from her home and school partly along the same road all of the prior school year and for approximately a month of the new term immediately before her death.
The above facts are, as stated, not directly attacked in this court, although the plaintiff by two points seeks to have this court set aside the trial court's conclusions based thereon. The plaintiff takes exception to (1) the trial court's conclusion that the defendant was not negligent in the operation of the pickup or that the defendant's negligent operation of the pickup was not the proximate cause of the death of decedent, and (2) the court's holding that the decedent was negligent and that such negligence proximately contributed to her death.
Inasmuch as no specific point was made attacking the findings of the trial court, this court is bound by such findings, provided, of course, that they are supported by substantial evidence. Quite obviously the facts as found are not exactly as the plaintiff wished, but we find there was substantial evidence upon which the trial court based its findings, and they must therefore control. Libby v. De Baca, 51 N.M. 95, 179 P.2d 263; Mobley v. Garcia, 54 N.M. 175, 217 P.2d 256, 19 A.L.R.2d 553; Gibbs v. Whelan, 56 N.M. 38, 239 [65 NM 169] P.2d 727; Edwards v. Peterson, 61 N.M. 104, 295 P.2d 858. This leaves for the determination of this court the question as to whether or not the trial court's conclusions based upon the findings of fact are proper.
There are literally thousands of cases involving injuries to children, many of which differ only slightly...
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Alvarez v. Alvarez
...in this court. That this is the rule many times repeated by us is clear. See White v. Wheeler, 67 N.M. 346, 355 P.2d 282; Marrujo v. Martinez, 65 N.M. 166, 334 P.2d 548; Rone v. Calvary Baptist Church, Inc., 70 N.M. 465, 374 P.2d 847, to cite a few of our latest cases so However, we are not......
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Latimer v. City of Clovis
...83 N.M. 336, 491 P.2d 1147 (1971). New Mexico decisions have held that a seven year old child may be negligent. Marrujo v. Martinez, 65 N.M. 166, 334 P.2d 548 (1959). New Mexico Uniform Jury Instructions limit the question of ordinary care on the part of a child to those seven years of age ......
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Franklin's Earthmoving, Inc. v. Loma Linda Park, Inc.
...Facts found by the court and not attacked, and which are therefore the facts upon which the case rests in this court, Marrujo v. Martinez, 65 N.M. 166, 334 P.2d 548, are that George W. Walker, a director of Sandia, observed Franklin working on the racetrack and told J. S. Lovvorn, represent......
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Montoya v. Winchell
...and thus barred from recovery. As regards the first point, we take note of two earlier decisions of this court. In Marrujo v. Martinez, 65 N.M. 166, 334 P.2d 548, we affirmed a judgment in favor of a driver of a truck who struck and killed a seven-year-old child who suddenly darted in front......