Mitchell v. Forster, 5850
| Decision Date | 07 April 1955 |
| Docket Number | No. 5850,5850 |
| Citation | 282 P.2d 708,1955 NMSC 27,59 N.M. 226 |
| Parties | Joe MITCHELL, Appellant, v. Claude R. FORSTER, Appellee. |
| Court | New Mexico Supreme Court |
C. R. Brice, Thomas B. Forbis, Roswell, for appellant.
Frazier, Cusack & Snead, Roswell, for appellee.
The question for decision is whether following a jury verdict for defendant, the trial court abused its discretion in denying plaintiff's motion for a new trial on the ground of a newly discovered eye witness to the automobile collision in which plaintiff suffered the injuries and loss made the basis of his action for damages.
The plaintiff's evidence disclosed he was traveling north on Main Street in the city of Roswell around six o'clock the morning of June 28, 1952. As he approached the intersection of Main and First Streets, he reduced his speed substantially to catch a change in the lights without coming to a complete stop. Upon the shift of the lights from red to green, he gathered speed slightly and was more than half way across the intersection when, without warning of any kind his car was struck with great force by defendant's pick-up truck traveling at excessive speed attempting to cross the intersection from the west. The pick-up hit plaintiff's car on the right side, just in front of the right door, and hurled him and his car in a westerly direction. He suffered severe bodily injuries and great damage to his car.
The defendant's story of the collision differed materially from that of the plaintiff. According to him, he was proceeding in a westerly direction along First Street at about 20 miles per hour and did not even see plaintiff until the two cars collided by the plaintiff's car striking the defendant's pick-up on the left side, the front fender, the force of the impact being on the cowl and left front door. Certain pictures were introduced in evidence showing damage to the front of plaintiff's car on the right side. The parties involved were themselves the only witnesses to the collision who testified and neither of them saw the other until the collision actually took place, except that plaintiff had seen defendant turn into First from Virginia and head west, a block away, just as the lights changed.
There were two other witnesses at the trial whose testimony threw some light on the collision. One was for the plaintiff, a garage mechanic, B. B. Dement, who had worked on plaintiff's car and described its condition following the collision. The other was Police Officer Corzine, a witness for defendant who was called to the scene of the accident to investigate same and arrived there shortly after it occurred. Since neither of them actually saw the collision their testimony could, of course, throw light upon it circumstantially only. Witness Dement made the repairs to both vehicles and testified that the plaintiff's car was heavily damaged in front, slightly damaged at the right front door and heavily damaged at the right rear. He testified, further, that defendant's pick-up suffered damage necessitating repairs to the left front fender, cowl panel, and left front door, with no damage to the grille or bumper.
Officer Corzine testified upon the first trial that he did not recall whether the traffic lights were on or off when he arrived at scene of the accident but that according to his best recollection they were on. At the second trial he said he had no independent recollection at the time whether they were on or off but according to his report they were off, that is, being manually controlled rather than automatic, that they had not yet been turned on at so early an hour in the morning.
The motion to set aside verdict and for new trial was based wholly upon the ground of this newly discovered evidence and was supported by the affidavits of plaintiff and the newly found witness, D. A. Calderon of Roswell, New Mexico. The latter's affidavit reads, as follows:
'D. A. Calderon, first being duly sworn upon his oath, states:
'That I live at 414 East Bland Street, Roswell, New Mexico, and have lived in Roswell since 1901, and am a practicing attorney of law and have been since 1918; that on the 28th day of June, 1952, I left my house about 6 o'clock in the morning, and about 6:15 to 6:20 I was at the Southeast corner of the intersection of Main and First Streets in Roswell; a car was going North on the East side of Main Street, the light was green on Main Street and red on First Street. I started to cross First Street from the South, going North when a pickup truck dashed in front of me on the North side of First Street going West, and hit the car which was going North on Main Street, he hit this car somewhere between the front door and the front wheel on the right side and turned him around toward the West, and in that turn both cars hit each other in the back and kept on going west. It appeared to me, from where I was, that they had another impact in front and the car was turned so that it was facing in a Northwesterly direction. The pickup truck was turned so that it was facing in a Northwesterly direction. The pickup truck was turned to the North and struck the curbing on the west side of Main Street, North of the intersection, and bounced back several feet into the street. The car going North was several feet North of the intersection when the first impact occurred. I later learned that the car going North was driven by Joe Mitchell. I judge the pickup truck was going at a rate of speed exceeding thirty miles per hour.
'I did not know that any action had arisen because of this collision, and did not know that Joe Mitchell had sued for damages, and if I had known I would have been willing to testify to the above facts.
/s/ D. A. Calderon'
It is followed by the verification, under the hand and seal of the notary public, before whom it was subscribed and sworn to. A response to the plaintiff's motion was filed by defendant putting its allegations at issue and, following a hearing, the trial court denied the motion, both by formal order filed in the case and by announcement in open court in which the trial judge stated:
'The Court:--(after argument and discussion)
'It is my judgment after having two jury trials in this case that if I should grant a new trial it would be reversible error. In other words, that would be three instances where you submit a question of fact to the jury; it gives one of the parties three chances to win a case, and I am of the opinion that ...
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