May v. Baklini

• Decision Date: 16 March 1973
• Docket Number: No. 994,994
• Citation: 85 N.M. 150,509 P.2d 1345,1973 NMCA 43
• Parties: Vera MAY, Plaintiff-Appellant, v. Christine BAKLINI and Edward Baklini, Defendants-Appellees. ,
• Court: Court of Appeals of New Mexico

Page 1345

509 P.2d 1345

85 N.M. 150

Vera MAY, Plaintiff-Appellant, v. Christine BAKLINI and Edward Baklini, Defendants-Appellees.

No. 994,

Court of Appeals of New Mexico.

March 16, 1973.

Rehearing Denied April 6, 1973.

Certiorari Denied May 14, 1973.

William H. Carpenter, Mercer & Carpenter, Albuquerque, for plaintiff-appellant

Eugene E. Klecan, Albuquerque, for defendants-appellees.

OPINION

WOOD, Chief Judge.

The jury verdict was for defendants in this two-car collision case. Plaintiff's appeal raises issues as to: (1) summary judgment on the basis of defendants' negligence; (2) instructions on turn signals, obstruction of traffic and contributory negligence; and (3) refusal to instruct negligence; and (3) refusal to instruct concerning road lighting equipment. darkness, on Candelaria Road in Albuquerque. Defendants' vehicle ran into the left rear of plaintiff's vehicle.

A frontage road, south of and adjacent to Candelaria, is separated from Candelaria by a divider. There are periodic openings in the divider. Plaintiff intended to turn right off of Candelaria when she came to the opening in the divider at Carolina Street. Her theory is that her car was hit as she made this turn. Defendants' theory is that the collision occurred east of the divider opening. There is evidence to support both theories.

Summary judgment as to defendants' negligence.

Plaintiff moved for summary judgment on the issue of defendants' liability. In claiming denial of the motion was error, she argues that she was entitled to summary judgment on the issue of defendants' negligence.

Plaintiff's theory of defendants' liability was that defendants' negligence was the proximate cause of the accident. Negligence and proximate cause are separate concepts. N.M. U.J.I. 12.10; Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967); Isaac v. Seguritan, 66 N.M. 410, 349 P.2d 126 (1960).

Assuming plaintiff made a prima facie showing of defendants' negligence, this was insufficient. A showing of proximate cause was also required. There being neither showing nor argument as to proximate cause, the trial court did not err in denying summary judgment on the issue of liability. See Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).

Instruction on turn signals.

There is evidence that plaintiff was in the process of turning her car when the accident occurred. The jury was instructed on the turn signal requirements of § 64--18--24, N.M.S.A.1953 (2nd Repl. Vol. 9, pt. 2), and the effect of violating the statute, N.M. U.J.I. 11.1. Objecting to the instruction, plaintiff asserted there was no evidence of an absence of proper turn signals; that all the evidence was that the signals were on and operating. Thus, she contends the instruction interjected a false issue into the case. Embrey v. Galentin, 76 N.M. 719, 418 P.2d 62 (1966).

There is evidence that the turn signals on plaintiff's car were on and operating. There is an inference that the signals had operated for the distance required by § 64--18--24, supra. Christine Baklini, the driver of defendants' car, testified there was a 'possibility' that the signals were not on. Such a possibility is no more than speculation which would not be sufficient basis for the instruction. Elder v. Marvel Roofing Co., 74 N.M. 357, 393 P.2d 463 (1964).

Christine Baklini also testified: '. . . I didn't see the other car, I was coming down Candelaria. I had my head forward, I was watching the road, and I didn't see her. I didn't see anything.' If a person is looking and does not see, a reasonable inference follows that the signals were not on. Turner v. McGee, 68 N.M. 191, 360 P.2d 383 (1961). The inference from the above quoted testimony is that the turn signals were not on. On the basis of this inference, the instruction was proper.

Instruction on obstructing traffic.

The jury was instructed that an Albuquerque ordinance makes it unlawful '. . . to operate or to stand a vehicle on any public way in such manner as to obstruct the free use of such public way.'

Plaintiff contends the ordinance cannot be considered to apply to 'slowspeed' because if so considered it would be invalid on the basis it conflicts with a State statute, § 64--18--49, N.M.S.A.1953 (2nd Repl. Vol. 9, pt. 2). See City of Hobbs v. Biswell, 81 N.M. 778, 473 P.2d 917 (Ct.App. 1970). We do not consider a possible conflict between the ordinance and the statute because no such contention was raised in the trial court. Tafoya v. Whitson, 83 N.M. 23, 487 P.2d 1093 (Ct.App.1971). What we do consider is plaintiff's objection to the instruction--that there was no evidence that plaintiff's vehicle was operated or stood so as to obstruct free use of the public way.

There is evidence that plaintiff's passenger was directing the plaintiff; telling plaintiff where to turn. There is evidence that plaintiff's car slowed when plaintiff came to California Street, west of Carolina. There is evidence that plaintiff and her passenger were looking for the street signs and continued at a reduced speed from California to Carolina. Plaintiff testified: '.. . when we got ready to slow down to make the turn, we weren't going.' The evidence permits a reasonable inference that the accident did not occur at the opening in the divider at Carolina Street, but east of that opening. The jury could conclude from the foregoing that plaintiff either stopped or, proceeding slowly, started to turn after passing the opening in the divider.

The evidence referred to above raised a factual question as to whether plaintiff's vehicle was obstructing free use of Candelaria. Lafferty v. Wattle, 349 S.W.2d 519 (Mo.App.1961); see Jacobson v. Hala, 255 Iowa 918, 125 N.W.2d 500 (1963); Aanenson v. Engelson, 267 Minn. 1, 124 N.W.2d 360 (1963).

Plaintiff asserts the evidence is insufficient because Candelaria has four lanes for traffic and there were no other cars in the vicinity when the accident occurred. She asserts that under the evidence, at most, she could have been obstructing only one lane. We disagree. Other traffic in the vicinity is not necessary to raise a factual question as to plaintiff's obstruction. Lafferty v. Wattle, supra.

Instruction on contributory negligence.

Plaintiff objected to the instruction on contributory negligence, asserting there was no substantial evidence on that issue. We disagree.

Contributory negligence embraces two concepts--plaintiff's negligence and proximate cause. Fitzgerald v. Valdez, supra. The evidence justifying the instructions on turn signals and on obstructing the road was evidence of plaintiff's negligence. Whether that asserted negligence was the proximate cause of the accident was also a factual question. Le Doux v. Peters, 82 N.M. 661, 486 P.2d 70 (Ct.App.1971), aff'd 83 N.M. 307, 491 P.2d 524 (1971).

Refusal to instruct concerning road lighting equipment.

Plaintiff requested instructions as to the requirements for and use of road lighting equipment under §§ 64--20--30 and 64--20--31, N.M.S.A.1953 (2nd Repl. Vol. 9, pt. 2). She claims refusal of these instructions was error because '. . . the defendant could not state whether the lights on her automobile were in compliance with this statute or not. . . .' She claims this lack of knowledge, together with the testimony from Christine Baklini that she did not see plaintiff's car before the collision, justified an instruction on the statutory requirements for road lighting equipment. We pass this question. We also pass the question as to whether the requested instructions covered elements of the statutes for which there was no evidence. See LaBarge v. Stewart, 84 N.M. 222, 501 P.2d 666 (Ct.App.1972).

Plaintiff requested an instruction which stated the claimed acts of negligence on the part of defendants. This instruction, based on N.M. U.J.I. 3.1, is the post to which other instructions are tied. See N.M. 3.1, Directions on Use.

Plaintiff's instruction was given as requested. The instruction stated three theories of negligence--failure to have the car under control, failure to keep a proper lookout and following too closely. A claimed violation of statutory provisions for road lighting equipment is not included in these three theories.

The requested instructions on road lighting equipment would have informed the jury that if defendants violated either § 64--20--30 or § 64--20--31, supra, their conduct amounted to negligence. See N.M. U.J.I. 11.1. Since plaintiff did not claim defendants were negligent on the basis of these statutes, to have given the requested instruction would have been to inject a false theory of negligence into the case. The trial court did not err in refusing to instruct on a theory of negligence which plaintiff had not asserted. See Abeyta v. Atchison, Topeka & Santa Fe Railway Co., 65 N.M. 291, 336 P.2d 1051 (1959).

Affirmed.

It is so ordered.

LOPEZ, J., concurs.

SUTIN, J., concurred in part and dissented in part.

SUTIN, Judge (concurring in part, and dissenting in part).

I. Appellate Court's Review of Briefs in Arriving at Decision

In Durrett v. Petritsis, 82 N.M. 1, 3, 474 P.2d 487, 489 (1970), the Supreme Court stated:

We have often said that the presumptions are in favor of verdicts and the facts are to be viewed in the aspect most favorable to the prevailing party. . . .

Appellants in damage suits, angry and frustrated by loss, blindly appeal in search of reversal. Many attorneys who try and appeal cases are incompetent or lack the time to read the law or follow the rules of procedure. Competent attorneys successfully appeal. Clients have a duty to seek counsel who specialize in trial and appellate work. When attorneys fail to follow the standards of the legal profession in this state, they should be subject to claims for malpractice.

I write this, not only to assist lawyers, but to assist the public and this court. Constantly, we are called on to do research work, to make decisions based on our own labor, and cast briefs aside.

Lawyers in...