MILLER v. MARSH

• Decision Date: 07 January 1949
• Docket Number: No. 5128,5128
• Citation: 53 N.M. 5,201 P.2d 341
• Parties: MILLER v. MARSH et al.
• Court: New Mexico Supreme Court

53 N.M. 5

201 P.2d 341

MILLER

v.MARSH et al.

No. 5128.

Supreme Court of New Mexico.

Nov. 29, 1948.

Rehearing Denied Jan. 7, 1949.

[201 P.2d 342, 53 N.M. 6]

Rodey, Dickason & Sloan, Frank M. Mims and Jackson G. Akin, all of Albuquerque, for appellants.

Adams & Chase, of Albuquerque, for appellee.

LUJAN, Justice.

This is action of damages to recover for personal injuries. The plaintiff (appellee) 20 years of age, while riding his motorcycleat the intersection of Central Avenue and Wellesley Avenue in the City of Albuquerque, collided with a panel motor truck belonging to the defendant, H. A. Marsh, operated by his employee, William J. Carr, from which he sustained a severe skull fracture and brain injury. The case was tried to a jury, which returned a verdict in favor of the appellee in the sum of $15,000.00. A motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, was made and overruled. Judgment was entered upon the verdict, from which this appeal is prosecuted. The parties will hereafter be referred to as they appeared in the lower court.

Central Avenue runs east and west and Wellesley Avenue north and south. The latter does not intersect Central Avenue straight across, but makes a jog at the intersection, so that the center line of South Wellesley Avenue is 7.5 feet east of the center line of north Wellesley. There is no button or other marker to denote the center of the intersection. East Central Avenue has six traffic lanes and is 68.12 feet wide from curb to curb. The first lane south of the center line is 11.15 feet wide, the middle land is 9.75 feet wide, and the last lane next to the curb is 12.60 feet wide. It is part of U. S. Highway No. 66 and a 'through street', which carries a large volume of traffic. There in no traffic light at the intersection but it is protected by a 'stop' sign on Wellesley Avenue. Wellesley Avenue has two traffic lanes and is 32.40 feet wide from curb to curb. Both avenues are paved.

The defendants assign several errors which they argue under four separate points, to-wit: 1. Whether there is sufficient evidence of negligence to support the verdict. 2. Whether the evidence requires the conclusion that the plaintiff was contributorily negligent. 3. Whether the court erred prejudically in admitting testimony objected to. 4. Whether the court erred in refusing the defendant a new trial.

Under point one, defendants say: 'We believe that there is sufficient evidence of negligence on the part of the defendant, Carr, to support the verdict and will therefore not argue that issue.' It is apparent that defendants accept the rule that this court resolves all disputed facts in favor of appellee and views the evidence in the aspect most favorable to him, but contend and so arguing, the court should have directed a verdict in their favor because of the contributory negligence of the plaintiff.

Under point two, the defendants seriously urge that the evidence requires the conclusion that the plaintiff was guilty of contributory negligence and therefore could not recover. This contention is based upon the theory that the plaintiff was traveling at an excessive rate of speed in approaching the intersection, and upon the further contention that he had ample room to havepassed in front of the truck or could have turned to his right into Wellesley Avenue, and have thus avoided the collision.

An employee of the defendants, at the time was operating a 1934 Dodge paneltruck, going north on Wellesley Avenue. He testified that upon arriving at Central Avenue, he stopped as directed by a 'stop sign' and allowed the oncoming traffic to pass before entering the street. As he started entering Central Avenue he observed the motorcycle half a block away (165 feet). He held out his hand and proceeded into the intersection, intending to go west on Central Avenue, and as he did so he began cutting the corner to his left before reaching the center of the intersection. When he reached Lane No. 2 (middle lane) south of the intersection he again observed the motorcycle about 100 feet away coming towards him in Lane No. 3 south, which is the lane next to the center line, at about 40 miles per hour. He stopped his truck, completely blocking Lane No. 2, the front end of his truck extending approximately four feet into Lane No. 3, and the rear of his truck extending approximately two feet six inches into Lane No. 1.

Due to the injury to his brain, the plaintiff, at the time of trial was unable to remember anything that happened before the accident.

There was much testimony pro and con on the question of whether the plaintiff was violating the speed limit. But we find there is substantial testimony that he was not and we are required to accept this.

We do not weigh the testimony. The ultimate facts are questions for the jury to determine. The evidence in regard to speed was conflicting, at most only calculations were given, but it is sufficient to sustain the verdict of the jury that the plaintiff was not violating the speed limit. Whether the witnesses were actually correct as to the location of the truck at the time it stopped in all details would not prevent the jury from segregating the evidence and finding where the preponderance was.

It may be that the wiser course would have been for the plaintiff, if he had enough room, to have passed in front of the truck or to have turned into Wellesley Avenue; but he was not bound at his peril to adopt what later would have proved to be the better alternative, and whether or not he was guilty of negligence in veering to the right and going behind the truck in an attempt to avert the collision was not a question of law, but as before stated, a question of fact for the jury. Williams v. Haas, 52 N.M. 9, 189 P.2d 632; Seele v. Purcell, 45 N.M. 176, 113 P.2d 320.

One in great peril, when immediate action is necessary to avoid it, is not required to exercise all that presence of mind and carefulness required of a careful and prudent man under ordinary circumstances. Crocker v. Johnston, 43 N.M. 469,92 P.2d 214. In such a situation the plaintiff was only required to endeavor to do in a prudent manner what seemed reasonable to him under the circumstances to avoid the collision after the discovery of his danger. Mozley v. Rinehart, 35 N.M. 164, 291 P. 294.

Under point three, the defendants contend that the court erred in the admission of certain evidence over their objection and exception. It was permissible for plaintiff to show, not only the physical facts, but the effect of such facts upon persons using the street. Defendants charged the plaintiff with contributory negligence. To meet that issue it was his privilege to show that he acted, under the circumstances, as an ordinarily prudent man would have acted under similar conditions. The testimony of the witness Dr. Andrews, who was driving his automobile approximately 120 feet in the rear of the motorcycle, and who saw the collision and observed the movements of the truck was, that if the truck had continued at the same rate of speed it entered Central Avenue, there would have been no accident. He was simply asked to state from his own observations whether or not the collision could have been avoided if the truck had continued its course. Plaintiff's attorney asked him: 'Now, if the truck had continued at the same rate of speed that he was coming out of Wellesley Street, and if the motorcycle had continued at the same rate of speed that it was going, would there have been a...