Massey v. Beacon Supply Co.

• Decision Date: 24 May 1962
• Docket Number: No. 7030,7030
• Citation: 371 P.2d 798,1962 NMSC 69,70 N.M. 149
• Parties: Morris C. MASSEY, Plaintiff-Appellee, v. BEACON SUPPLY COMPANY, a Corporation, and Lee Barrett, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 798

371 P.2d 798

70 N.M. 149

Morris C. MASSEY, Plaintiff-Appellee, v. BEACON SUPPLY COMPANY, a Corporation, and Lee Barrett Defendants-Appellants.

No. 7030.

Supreme Court of New Mexico.

May 24, 1962.

Tansey & Rosebrough, Farmington, for appellants.

Modrall, Seymour, Sperling, Roehl & Harris, Allen C. Dewey, and Silas G. Henry, Jr., Albuquerque, and James L. Brown, Farmington, for appellee.

COMPTON, Chief Justice.

This is a negligence action brought by plaintiff against Beacon Supply Company and Lee Barrett, a former employee of Beacon Supply Company, to recover for personal injuries and medical expenses as the result of an automobile accident in Farmington, New Mexico, on September 4, 1956. No service was had on Barrett but he testified for Beacon Supply Company at the trial. Defendant company answered and filed a counterclaim for damages to its automobile. A pre-trial conference determined the issues to be agency, negligence, contributory negligence, unavoidable accident and damages. The cause was tried to the court without a jury. This appeal is taken from a judgment for plaintiff against Beacon Supply Company in the amount of $69.92 as special damages for medical expenses and $6,000 as general damages for injuries, disability, pain and suffering, past and future. Hereinafter Beacon Supply Company will be referred to as appellant and the plaintiff below will be referred to as appellee.

The accident occurred at the intersection of Airport Drive and Apache Street. The appellee was driving north on Airport Drive which was a through street. Barrett was driving appellant's car west on Apache Street which was posted with a stop sign where it intersected Airport Drive. Approximately 70 yards south of the intersection on Airport Drive there were two signs, one positing a speed limit and another indicating a curve ahead. The testimony is disputed as to whether the sign gave the speed limit as 25 or 35 miles per hour. Airport Drive, as alternate Highway 666, curved to the west at the intersection of Apache Street, or 'Y'd' off so that the intersection was not a part of the alternate highway for those continuing north on Airport Drive. Whether Airport Drive was also a state highway as it continued north was in conflict. Appellee testified he was proceeding at about 30 miles per hour and that the appellant's auto failed to stop at the stop sign. The point of impact was in the northwest quadrant of the intersection. Appellee's car left about 15 feet of skid marks and thereafter came to a stop about 170 feet distant in a lot on the northwest corner. Appellant's car left skid marks 6 to 8 feet before the stop sign on Apache Street and skid marks beginning 2 feet west of the sign and, after the impact, came to a stop up on the curb of the northeast corner of the intersection facing south and slightly east. The evidence is conflicting as to whether Barrett came to a stop at the sign before proceeding into the intersection.

As a result of the accident, appellee suffered injury to his knees which were jammed into the dash board by the impact. The medical and other testimony is that appellee now has an arthritic condition in his knees which is painful and somewhat disabling; that it is permanent and can be expected to get progressively worse.

With respect to the matter of agency, Barrett was employed by appellant as a counterman from 7 a.m. to 5 p.m. Another employee, a field representative by the name of Shackleford to whom a car was assigned for his use at all times, sometime after 5 p.m. on the day in question was making a delivery to Cuba, New Mexico. Barrett was off duty and went along for his own pleasure. On the return trip Shackleford became sleepy and asked Barrett to drive the car, which he did. Barrett drove into Farmington from the east, went beyond appellant's place of business, beyond Shackleford's home, beyond his own home, and, at the time of the accident, was within five or six blocks of the house of a friend where he had intended to pick up his, Barrett's car, in order to have his own transportation home.

Appellant first attacks the following findings and conclusion of the trial court:

Finding No. 7. 'Airport Road was posted for a 35 mile per hour speed limit applicable at the point of intersection of Apache Street.'

Finding No. 8. 'The Massey automobile was traveling at a speed under 35 miles per hour.'

Conclusion No. 5. 'The plaintiff, Massey, was not negligent.'

In addition to appellant's contention that these findings and conclusion are not supported by substantial evidence, it states that finding No. 8 is inconsistent with the physical facts contained in finding No. 10, as follows:

Finding No. 10. 'The vehicle driven by plaintiff laid down 10 to 15 feet of skid marks before striking the vehicle of defendant and after striking defendant's vehicle and turning it completely around, plaintiff's vehicle traveled 170 feet out into a vacant lot.'

It is the position of appellant that Airport Drive, south of the intersection in question, was a state highway, that the highway followed a curve to the west before reaching the point in the intersection where the accident occurred, that even if the posted speed limit for the highway was 35 miles per hour, which it denies, then appellee by proceeding north of the highway on Airport Drive was beyond the place where the highway speed limit was applicable and, therefore, violated a city ordinance by driving 30 miles an hour in a 25 mile zone. The record indicates that the parties stipulated that Airport Drive was a state highway up to and around the curve to the west, but there is a complete lack of evidence as to whether Airport Drive as it continued north was a city, county, or state road. The trial court indicated this was a matter of proof, but no map of the city was introduced in evidence. In view of the convincing evidence that Airport Drive was posted at 35 miles per hour 70 yards before reaching the intersection, and a complete lack of authoritative evidence that this speed limit was not applicable to Airport Drive as it continued straight north, there is substantial evidence to support finding No. 7.

With respect to finding No. 8 there was no testimony that the appellee was traveling at a greater rate of speed than 30 miles an hour. In view of the physical facts enumerated in finding No. 10, appellant asserts that it is impossible for appellee to have been traveling under 35 miles an hour, and seeks to invoke the rule that when physical facts are so opposed to oral testimony as to make it inconceivable that any such thing could have occurred, this court will set aside a judgment based on such oral testimony as contrary to the weight of the evidence.

This court has held that oral testimony, when measured by the physical facts, will not be rejected merely because of apparent improbability. It is only where the facts testified to are utterly at variance with well-established and universally recognized physical laws and, therefore, inherently impossible, or incredible of belief that they will be rejected. Crocker v. Johnston, 43 N.M. 469, 95 P.2d 214. The evidence indicates that on the impact appellee's knees struck the dashboard, jarred him loose from the brakes and that he did not reapply the brakes but guided the car as it continued under its own momentum until it came to a stop 170 feet from the point of impact. In order to overcome conflicting testimony, physical facts must so speak as to show the inherent improbability of the accident occurring as testified to and be such that a reasonable mind must reject the conflicting testimony as wholly impossible of belief. Alexander v. Cowart, 58 N.M. 395, 271 P.2d 1005; Ortega v. Koury, 55 N.M. 142, 227 P.2d 941. We are unable to say that under the circumstances here the fact that appellee's car laid down 10 to 15 feet of skid marks before striking appellant's car and turning it completely around and thereafter traveled 170 feet before coming to a stop, is so inherently improbable or incredible of belief that appellee's testimony that he was going under 35 miles an hour was not entitled to any credibility or weight. The rule as to incontrovertible physical facts is applicable only in clear cases. Larsen v. Bliss, 43 N.M. 265, 91 P.2d 811. These physical facts are not such as would leave room for no other conclusion than appellee must have been going more than 35 miles per hour and, therefore, we find no inconsistency between finding No 8, which is supported by substantial evidence, and the court's finding No. 10.

We come next to the contention of appellant that there is not substantial evidence to support the following finding and conclusions:

Finding No. 17. 'The defendant, Lee Barrett, was employed by the Beacon Supply Company and was acting within the scope of and in the course of his employment at the time of the collision.'

Conclusion No. 6. 'Lee Barrett was an employee and agent of the defendant Beacon Supply Company and was operating said vehicle within the scope of his employment and agency at the time of the collision.'

Conclusion No. 7. 'The issues are found in favor of the plaintiff and against the defendant, Beacon Supply Company, as to the complaint and on the counterclaim.'

It is appellant's further contention that finding No. 17 is wholly inconsistent with the following findings:

'12. That Lee Barrett was employed as a counterman or warehouseman by defendant six days a week from 7 a. m. to 5 p. m.'

'13. That Dale Schackleford and Lee Barrett departed for Cuba, New Mexico on September 4, 1956, after 5:00 p. m. and that Lee Barrett was than off work for defendant and on his own time.'

'14. The driver of defendant's car, Lee Barrett, had gone along on a delivery to Cuba, New Mexico, with Dale Shackleford, defendant's salesman, purely for his own pleasure, with implied consent of the defendant, Beacon Supply Company.'

'15. That at the time of the accident and the place where...