Merrill v. Stringer

• Citation: 1954 NMSC 48,58 N.M. 372,271 P.2d 405
• Decision Date: 11 May 1954
• Docket Number: No. 5738,5738
• Parties: MERRILL v. STRINGER.
• Court: Supreme Court of New Mexico

Page 405

271 P.2d 405

58 N.M. 372

MERRILL v. STRINGER.

No. 5738.

Supreme Court of New Mexico.

May 11, 1954.

Rehearing Denied June 18, 1954.

Joseph L. Smith, Lorenzo A. Chavez, Arturo G. Ortega, Albuquerque, for appellant.

Simms & Modrall, George T. Harris, Jr., Albuquerque, for appellee.

COMPTON, Justice.

Appellant, plaintiff below, instituted this action for damages for personal injuries sustained by her allegedly resulting from being struck by an automobile driven by appellee.

The accident occurred about 7:00 p. m. May 31, 1952, on East Central near the center line, and some 60 feet west of the intersection of East Central and Adams Street. On the day in question appellant had worked at Highland Hairdresser Shop, and to return home it was necessary to cross East Central from the south to the north and possibly catch a westbound bus. At the southwest quadrant of the intersection there is a bus stop for the convenience of passengers traveling east. She hesitated at this stop and soon an eastbound bus slowed up to stop. She waved for the driver to go on and the bus proceeded east. She then looked to the west ostensibly to judge the traffic, and as soon as the bus had cleared away, started running in a northwesterly direction. At the same time appellee was driving his automobile west on East Central in the south lane next to the center line at a speed of approximately 25 to 30 miles per hour. Appellant ran or walked into the path of the vehicle. The impact rendered her unconscious for days and she was otherwise seriously injured.

The complaint charges two causes of action; the negligence of appellee in the operation of the automobile; and that appellee had a last clear chance to avoid the accident. The negligent acts, omission and failure to act alleged as a basis for the application of the last clear chance doctrine, are excessive speed under the circumstances, failure to maintain a proper lookout and failure to exercise ordinary care for appellant's safety whom he saw, or should have seen, was in a position of peril from which she could not escape by the exercise of ordinary care. These charges were put in issue by a general denial. As special defenses, appellee pleaded contributory negligence and assumption of risk. Subsequently, the first cause of action was withdrawn, leaving only the last clear chance issue. The cause was tried to a jury and when appellant rested, appellee's motion for a directed verdict on the ground there was no issuable fact for the jury, was granted and the cause dismissed. Assigned as error is the action of the court in directing the verdict and rendering judgment thereon.

The grounds for directing the verdict are reflected by the remarks of the court to the jury 'The Court: Members of the jury, * * * I believe you are entitled to know the reason that I am going to direct a verdict in favor of the Defendant. It is on the basis that the so-called Last Clear Chance Doctrine does not apply. There is no question--in fact, it is admitted that the Plaintiff was negligent in this case. She was, herself. She ran out into the street at a portion that wasn't a marked crosswalk, and she angled over, the undisputed evidence is, to the middle line of the highway, and her negligence continued right up to the moment of impact. It was a question for you folks as to whether the Defendant should have seen her position of peril, and whether--and as to whether he was negligent in that regard, but you have to also establish that as a result of the Plaintiff's negligence, she was in a position of peril from which she could not have escaped by the exercise of ordinary care, and that was not established, nor was it established that the Defendant, after she was in the position of peril, had a Clear Chance, by the exercise of ordinary care, to avoid the injury, so on the basis of that, I am going to direct you to return a verdict in favor of the Defendant. * * *'

The parties are in accord on the essential elements which must be present in order to warrant the application of the last clear chance doctrine, (a) that the appellant has been negligent, (b) that as a result of her negligence she is in a position of peril from which she cannot escape by the exercise of ordinary care, (c) that the defendant knows or should have known of plaintiff's peril, and (d) that appellee had a clear chance by the exercise of ordinary care to avoid the injury and that he failed to do so. Floeck v. Hoover, 52 N.M. 193, 195 P.2d 86.

Appellant contends that appellee had a last clear chance to avert the injury by the exercise of ordinary care, after having appreciated her danger and having reason to suppose that she would not save herself from injury, but failed to do so. Conversely, while admitting he was negligent in not seeing appellant, appellee contends that the last clear chance doctrine is inapplicable because appellant was physically able to extricate herself by the exercise of ordinary care, and that appellee did not have actual knowledge of appellant's perilous situation.

We think the court committed error. The case was disposed of on the issue of negligence and contributory negligence. The verdict should be directed only if in the exercise of sound discretion the court can say there is neither evidence nor permissible inference which would support a verdict for the plaintiff.

It need not appear that appellant was physically unable to extricate herself. The rule applies with equal force where a plaintiff is unable to escape danger because wholly unaware of it where a defendant actually sees the perilous position and could have averted the injury by the exercise of ordinary care. Sanchez v. Gomez, 57 N.M. 383, 259 P.2d 346; Thayer v. Denver & R. G. R. Co., 21 N.M. 330, 154 P. 691; Smith v. Los Angeles Ry., 105 Cal.App. 657, 288 P. 690; Girdner v. Union Oil Co., 216 Cal. 197, 13 P.2d 915; Gillette v. City and County of San Francisco, 58 Cal.App.2d 434, 136 P.2d 611; Nicolai v. Pacific Electric Ry. Co., 92 Cal.App. 100, 267 P. 758; Gainer v. United Railroads, 58 Cal.App. 459, 208 P. 1013; Center v. Yellow Cab Co., 216 Cal. 205, 13 P.2d 918.

The Thayer case, supra, is the leading case on the doctrine in this jurisdiction. Mr. Justice Roberts speaking for the court, said [21 N.M. 330, 154 P. 697]:

'* * * Where the negligence of the plaintiff continues up to the very moment of the injury and is contemporaneous and concurrent with the negligence of the defendant, and where the exercise of reasonable diligence before the injury would have warned the plaintiff of his danger and have enabled him to escape by his own efforts, there can be no recovery. Take, for example, the facts in the present case. Suppose the defendant could show that after the car upon which plaintiff was riding was upon the main track plaintiff saw the engine approaching, and he could by the exercise of due care, have stepped off the car without danger of injury to himself, and he neglected to do so, he would have no right to recover. Of course, if the plaintiff could show that he was unconscious of the threatened danger in time to have avoided the injury, and that the defendant actually saw or knew of the danger to which the plaintiff was exposed, and also knew or should have known that the plaintiff was unconscious thereof, and the defendant failed to use due diligence to avoid the injury, the plaintiff would be entitled to recover. * * *'

In Girdner v. Union Oil Co., supra [216 Cal. 197, 13 P.2d 917], the court said:

'* * * and, as a result thereof, is in a position of danger from which he cannot escape by the exercise of ordinary care; and this includes not only where it is physically impossible for him to escape, but also in cases where he is totally unaware of his danger and for that reason unable to escape * * *.' (Emphasis ours.)

Appellee strongly argues that the evidence is conclusive that he did not have actual knowledge of appellant's danger. This contention is based principally on appellee's own testimony. He testified that the first time he saw appellant 'she appeared in his windshield' at the moment of the impact. But this evidence is not conclusive. The jury was not bound by his denial. Whether appellee saw and appreciated appellant's situation and could have avoided injuring her by the exercise of ordinary care, was a question for the jury and not one of law to be judicially determined. Thompson v. Albuquerque Traction Co., 15 N.M. 407, 110 P. 552; Lucero v. Harshay, 50 N.M. 1, 165 P.2d 587; Sanchez v. Gomez, 57 N.M. 383, 259 P.2d...