Menkes v. Vance

• Decision Date: 12 August 1953
• Docket Number: No. 5644,5644
• Citation: 1953 NMSC 65,57 N.M. 456,260 P.2d 368
• Parties: MENKES v. VANCE.
• Court: New Mexico Supreme Court

Page 368

260 P.2d 368

57 N.M. 456

MENKES v.VANCE.

No. 5644.

Supreme Court of New Mexico.

Aug. 12, 1953.

Rehearing Denied Sept. 3, 1953.

J. Benson Newell, Las Cruces, for appellant.

W. C. Whatley, W. B. Darden and LaFel E. Oman, Las Cruces, for appellee.

McGHEE, Justice.

The decisive question on this appeal is whether the evidence of the plaintiff was sufficient to withstand a motion for a directed verdict at the close of his case.

The plaintiff was riding as a guest of the defendant in a 1934 Ford automobile on which only the left headlight was burning traveling on a bladed road containing considerable blow sand in places, and with slight turns in it to avoid mesquite in some three places.Light poles were set at the edge of the road.The car left the road where it made a slight turn to avoid a mesquite bush, and struck a pole on the right side of the car, demolishing the car and inflicting serious injuries upon the plaintiff.

The plaintiff and defendant were students at the New Mexico College of Agriculture and Mechanic Arts located just south of Las Cruces, New Mexico.They had gone that evening in the defendant's car from the school dormitory to that city where they had dinner.The plaintiff had ridden with the defendant a number of times and knew the right headlight was not burning before the accident.After dinner the defendant was taking the plaintiff to the home of the latter's brother where a car was to be borrowed by the plaintiff to take some friends to El Paso, Texas, but the defendant was not going on that trip.Two roads were available for travel to the place where the car was to be borrowed, one a paved road to be reached by turning to the right a short distance at a certain point south of Las Cruces, and the other the bladed dirt road reached by turning to the left a short distance.It was the latter road the defendant selected to travel.

According to the testimony of the plaintiff(and he was the only one who testified as to what happened), after the defendant entered the dirt road he accelerated his speed and the plaintiff stated to the defendant if he wanted to drive that fast he should go to the other road which was paved and that he was driving too fast.The plaintiff also testified this was the last he remembered; that the accident could have occurred in a split second thereafter; and that he did not hear the defendant make any reply.The plaintiff did not attempt to estimate the speed of the Ford.

Our guest statute, section 68-1001, N.M.S.A., 1941 Comp., under which this action was brought, reads:

'No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.'

We construed this statute in Smith v. Meadows, 1952, 56 N.M. 242, 242 P.2d 1006, where former...