Mills v. Southwest Builders, Inc.

• Decision Date: 30 August 1962
• Docket Number: No. 6889,6889
• Citation: 70 N.M. 407,1962 NMSC 115,374 P.2d 289
• Parties: James R. MILLS, Plaintiff-Appellee and Cross-Appellant, v. SOUTHWEST BUILDERS, INC., a corporation, and Roland R. Bierner, Defendants-Appellants and Cross-Appellees.
• Court: New Mexico Supreme Court

Page 289

374 P.2d 289

70 N.M. 407

James R. MILLS, Plaintiff-Appellee and Cross-Appellant, v. SOUTHWEST BUILDERS, INC., a corporation, and Roland R.

Bierner, Defendants-Appellants and Cross-Appellees.

No. 6889.

Supreme Court of New Mexico.

Aug. 30, 1962.

W. C. Whatley, R. E. Riordan, Las Cruces, for appellant.

J. D. Weir, J. R. Crouch, Las Cruces, for appellees.

MOISE, Justice.

About 3:00 or 4:00 p. m. on January 12, 1957, Donald L. Lyles, having just purchased a second hand 1955 Buick sedan, picked up James R. Mills, the plaintiff-appellee, at his home in Las Gruces, to show off the car. Appellee got in the front seat of the car and Lyles then drove to the home of another friend, Lewis J. Braddi, who together with wife, Joyce, got into the back seat to go for a ride. Lyles, with his three passengers, proceeded to Sierra Drive and turned and proceeded north on this street. The speed limit was 40 miles per hour, and Lyles was not exceeding the speed limit.

Just before the accident which gave rise to this law suit, a ton-and-a-half Ford truck belonging to defendant-appellant, Southwest Builders, Inc., and driven by defendant-appellant, Roland R. Bierner, with one Juan Porris riding alongside him, was also proceeding north along Sierra Drive, and not exceeding the speed limit. Just before reaching a point where Sierra Drive intersects an east-west street known as Encina Street, there was at least one other car following appellant's truck, and this car was being followed by Lyles accompanied by his three passengers.

Although there is conflict in the testimony, it would appear that Lyles pulled out of his lane to the left, accelerated his car and started to pass the car and truck that were ahead of him. At the same time the truck started a turn onto Encina Street, or onto a roadway across a vacant lot on the left that led into Encina Street. Appellant's truck was equipped with mechanical signals but they were not in working order. Appellant, Bierner, corroborated by his passenger, Juan Porris, testified that some 200 feet before starting his turn, he held his left hand out straight to signal his intention. Appellee, corroborated by Mr. and Mrs. Braddi who were passengers with him in the Lyles car, testified that no signal of any kind was given. Also, while it is clear that Lyles accelerated the speed of his car from the 35 to 40 miles per hour he had been traveling while following the truck, it is not certain how fast he was going at the time of the collision. Appellant asserts that Lyles admitted he was going 70 miles per hour.

The right side of the Lyles car and the left side of the truck collided some place to the left of the center line of the street. The car overturned and appellee was injured. To recover for these injuries this suit was instituted. The jury found the issues in favor of appellee and awarded him $20,000.00 damages. This appeal followed.

Appellants argue three points. First, they assert that the court erred in submitting the case to the jury because of an absence of evidence showing appellant, Bierner, was negligent. Error is next claimed because of the court's refusal to instruct the jury on appellants' theories of the case which it is asserted were supported by substantial evidence. Third, it is argued that certain of the instructions given by the court were erroneous.

We have reviewed the evidence and although, as stated, there are contradictions therein, we are convinced that there is substantial evidence which supports a finding of negligence on the part of appellant, Bierner. Accordingly, the court did not err in overruling appellants' motion for a directed verdict at the close of appellee's case and Point I is overruled. Reid v. Brown, 56 N.M. 65, 240 P.2d 213.

Appellants' Point II is likewise without merit. Their position is that in their fourth defense they raised the defense that the driver, Lyles, was contributorily negligent and that appellee and Lyles were engaged in a joint venture, and there being evidence in the record to sustain these defenses the court erred in not instructing the jury thereon. The law in this jurisdiction supports the position that the jury must be instructed on defenses pleaded which are supported by evidence. Stewart v. Oberholtzer, 57 N.M. 253, 258 P.2d 369; Hanks v. Walker, 60 N.M. 166, 288 P.2d 699; McFatridge v. Harlem Globe Trotters, 69 N.M. 271, 365 P.2d 918.

We have examined appellants' fourth defense and find clearly stated there allegations that the driver, Lyles, and appellee were engaged in a joint venture; that Lyles, the driver, was negligent, and that his negligence is imputed to appellee.

In our view of this plea, it raised an issue of joint venture, and if substantial evidence to support a finding of joint venture was present, the jury should have been instructed concerning the defense. Appellants assert such evidence is present in the proof that Lyles had just bought the car and that appellee was a mechanic and was being taken on the ride so as to assist in road testing the car. The difficulty with this position lies in the fact that there is not one word of evidence to support the conclusion that they were engaged in a joint venture. Appellee denied it, and no witness contradicted him. Appellants' reference to the police officer's testimony that Lyles had stated that at the time of the accident he was road testing the car in no way conflicts with appellee's position that they were only out for a ride, nor is it substantial to raise an issue of joint venture. Compare, Davis v. Hartley, 69 N.M. 91, 364 P.2d 349. Accordingly, it was not error to refuse to submit the issue. Madsen v. Read, 58 N.M. 567, 273 P.2d 845; Davis v. Jones, 60 N.M. 470, 292 P.2d 773; McFatridge v. Harlem Globe Trotters, supra. By the same token, it was not error to refuse appellants' requested instructions which relate to questions incident to joint venture.

What is the situation concerning the claimed defense of contributory negligence? First, as we interpret the fourth defense, it raises no issue of contributory negligence. As stated above, it does contain an allegation that because of the joint venture the alleged negligence of Lyles is imputed to appellee. However, as part of their argument under this point appellants contend that a question of appellee's negligence was present in the proof that he gave no warning to Lyles when he observed him exceeding the lawful speed, and observed him attempting to pass the truck when within 100 feet of an intersection. To this end the court's refusal to give appellants' requested instruction 5 is claimed to be error. The requested instruction read:

'5. If you find from the evidence in this case that the plaintiff was riding in the front seat of the Lyles automobile and if at the same time you find that said Lyles automobile was being driven at a rate of speed in excess of that which was allowed by statute and the ordinances of the City of Las Cruces, and if you find that Lyles, driving his automobile with the plaintiff riding in the front seat thereof with him, had turned his said automobile to the left hand side of the street when he was within 100 feet of the intersection of that street with Encina Street, then it became and was the duty of the plaintiff to warn said Lyles of the presence of the intersection of Encina Street with Sierra Street, and if you should further find the plaintiff failed to give any such warning, then the plaintiff was himself negligent, and if you should determine that his negligence in this respect contributed to the collision of the Lyles automobile with the defendants' truck, your verdict must be for the defendants.'

Appellants than cite Silva v. Waldie, 42 N.M. 514, 82 P.2d 282, and the court's statement there to the effect that a driver's negligence is not to be imputed to a guest, 'But the guest is not absolved from personal care for his own safety. He must use such care as an ordinarily prudent person would exercise under the circumstances.' We observed in Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362, that the question of the guest's contributory negligence was present in Silva v. Waldie, supra. We think appellants' argument can be disposed of by pointing out first that appellee's negligence as a guest was not pleaded, and second, instruction 5 quoted above is a far cry from advice to the jury that, even though a guest, appellee had a duty to act as a reasonably prudent person in the circumstances. The instruction would make him negligent, and bar recovery if he did not speak up and warn the driver if the car was being driven above the legal speed limit, or if any other law of the road was being violated. Clearly, this is not the law, and never has been and the limits of the guest's duty is to remonstrate with the driver if a reasonably prudent person would have done so under the circumstances. Silva v. Waldie, supra.

Appellant's third point is an attack on instructions given by the court. They first complain of Instruction 9.

Concerning appellants' first argument that their theory of contributory negligence argued under Point II is not included, what is said above in disposing of that point is sufficient answer. Next, it is argued that, as framed, the instruction removed from consideration of the jury the effect of the sole negligence of the driver, Lyles. We don't find the instruction defective in this regard. As has already been pointed out, except under the circumstances noted, if appellee was a guest the negligence of the driver is not to be imputed to him, Silva v. Waldie, supra, and accordingly was not to be considered by the jury.

We also note that in Instruction No. 6 the jury were advised that if Lyles' negligence was found to be the sole cause of the accident the judgment should be for defendants. As we have said many times, the instructions are all to be considered together, and if, when so considered, they fairly present the law applicable, that is all...