McMinn v. Thompson

• Decision Date: 07 September 1956
• Docket Number: No. 6100,6100
• Citation: 301 P.2d 326,1956 NMSC 89,61 N.M. 387
• Parties: Beola McMINN, Plaintiff-Appellee, v. Jay B. THOMPSON, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 326

301 P.2d 326

61 N.M. 387

Beola McMINN, Plaintiff-Appellee, v. Jay B. THOMPSON, Defendant-Appellant.

No. 6100.

Supreme Court of New Mexico.

Sept. 7, 1956.

Smith & Smith, George M. Murphy, Clovis, for appellant.

Compton & Compton, Portales, for appellee.

McGHEE, Justice.

The plaintiff (appellee) was struck by defendant's (appellant's) car when she walked across a fifty-foot paved street between intersections after dark. The street, in Portales, New Mexico, is also a state highway. The defendant appeals from a judgment in favor of the plaintiff for $7,500 on account of personal injuries suffered by her.

The complaint alleged the injury was caused by the careless and negligent manner in which the defendant was operating his automobile and, in addition, that he had a last clear chance to avoid the accident and resulting injury. The defendant denied such allegations and pleaded assumption of risk and contributory negligence on the part of the plaintiff.

The first point relied upon for reversal is the claimed error of the trial court in denying defendant's motion for a directed verdict and his later motions for a new trial and judgment non obstante veredicto on the ground there was no substantial evidence of his negligence.

We briefly summarize the evidence on the point as follows:

The plaintiff was going home from her place of business after dark. When she reached the middle of the block opposite her home she looked to the left and saw the headlights of three cars travelling slowly toward her, so she proceeded to the center line of the street and then looked to her right and saw the defendant's car approaching her. She thought she had time to cross to the far side of the street. She then started across it and testified she did not remember anything more until she recovered consciousness in the hospital the following morning.

Police officers who investigated the accident a short time after its occurrence testified the defendant's car was stopped approximately even with the sidewalk leading from the street to the plaintiff's house and that she was lying in the street approximately 25 feet from the car; that the distance from the car back to the intersection of the first street north, from which the defendant had entered the street on which the accident occurred, was 165 feet, as it was stepped, although one of the officers at one place in his testimony gave it as 155 feet and later changed back to 165 feet. The officers also testified there were skid marks made by the tires on the defendant's car which extended back north for half of the distance to the intersection where the car had entered the street.

The defendant was called as an adverse witness by the plaintiff and admitted striking plaintiff with his car. He stated that while he was not watching the speedometer he knew he was not exceeding the speed limit of 25 miles per hour set by a city ordinance; that the headlights of his car were burning on dim, as required by the ordinance; that he did not see the plaintiff until he was approximately 30 feet from her and that he did all in his power to avoid hitting her. He also stated the right front fender of his automobile had a mashed place on it at the bend which was some 15 inches across where it struck the plaintiff.

It is easy to understand why the jurors rejected defendant's statements of how the accident occurred and when he first saw the plaintiff. His testimony that he first saw her when he was only 30 feet away is wholly inconsistent with the skid marks made by his tires for a distance of approximately 85 feet, or perhaps a few feet less from the point of impact, as he stated the car went a few feet after the plaintiff was struck. Defendant did not claim he applied the brakes before seeing plaintiff in the street.

It is a matter of common knowledge there is a reaction period between the time one becomes aware of danger and the actual operation of applying the brakes, and this would place the defendant still further up the street to the north before application of the brakes.

We believe under the record it was proper to submit the case to the jury and let it determine whether the negligence of the defendant was the proximate cause of the accident. However, if we be in error on this point, there still remained the issue of last clear chance.

The skid marks undoubtedly received serious consideration by the jury-- and properly so in this case where there were no eyewitnesses other than the parties--and were themselves sufficient evidence to sustain a finding of excessive speed in this 25 mile per hour zone. Bock v. Sellers, 1939, 66 S.D. 450, 285 N.W. 437; Bozman v. State, 1939, 177 Md. 151, 9 A.2d 60, and authorities therein cited; Swartz v. Dahlquist, 1948, 320 Mich. 135, 30 N.W.2d 809.

The next point urged by defendant is the plaintiff was guilty of contributory negligence as a matter of law in crossing...