Monden v. Elms

• Decision Date: 09 December 1963
• Docket Number: No. 7306,7306
• Citation: 387 P.2d 458,73 N.M. 256,1963 NMSC 213
• Parties: Cecil Ray MONDEN, Plaintiff-Appellant, The Home Indemnity Company, Plaintiffin-Intervention, Appellant, v. H. C. ELMS and the Halliburton Company, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 458

387 P.2d 458

73 N.M. 256

Cecil Ray MONDEN, Plaintiff-Appellant The Home Indemnity Company, Plaintiffin-Intervention Appellant, v. H. C. ELMS and the Halliburton Company Defendants-Appellees.

No. 7306.

Supreme Court of New Mexico.

Dec. 9, 1963.

William J. Heck, Hobbs, for appellant Cecil Ray Monden.

Keleher & McLeod, Russell Moore, Michael L. Keleher, Albuquerque, for appellant The Home Indemnity Co.

Neal & Neal, Hobbs, for appellees.

COMPTON, Chief Justice.

This is a personal injury action resulting from a motor vehicle collision at the intersection of a county road with State Highway 128 a short distance east of Jal, New Mexico.

The cause was tried to a jury and at the close of the plaintiff's case the defendants moved for a directed verdict on the ground that the plaintiff had failed to establish a prima facie case of negligence against the defendants. The court reserved its ruling on the motion until the defendants had put on their case. One witness was called by the defendants, a Mr. Reagan, shop foreman for Halliburton Company, after which they rested and renewed their motion, which was sustained. Judgment was entered accordingly and the plaintiff has appealed.

We are not unmindful of the rule that on appeal from a judgment based on a directed verdict for the defendant, the evidence, with all reasonable inferences flowing therefrom, must be viewed in the light most favorable to the plaintiff; and, where reasonable minds may differ as to the inferences and the conclusion to be drawn therefrom, it becomes a question of fact to be determined by the jury. Ferguson v. Hale, 66 N.M. 190, 344 P.2d 703; Stranczek v. Burch, 67 N.M. 237, 354 P.2d 531; Bell v. Ware, 69 N.M. 308, 366 P.2d 706; Martinez v. Scott, 70 N.M. 354, 374 P.2d 117; Bolt v. Davis, 70 N.M. 449, 374 P.2d 648.

State Highway 128 runs east and west and has paving 24 feet wide divided by a broken white line. The unpaved county road runs north and south and is 28 feet wide, the intersection being 24 feet north and south and 28 feet east and west. The collision occurred in the northwest quadrant and the point of impact was 4 feet and 6 inches north of the center line. The intersection is on a ridge or hill extending north and south. To the east a distance of 1300 feet there is a similar ridge or hill and about halfway between, the terrain gradually dips some 7 or 8 feet.

The appellant was an employee of Worth Well Surveys, Inc., in the capacity of a logging engineer. He had a general knowledge of the area as he had driven over Highway 128 on two occasions just previous to the accident. His vehicle was equipped with a two-way radio and on August 26, 1961, he was called by his employer by radio to report for work at an Atlantic Refining Company well. To reach the well site, he was directed to turn south at the intersection onto the county road, go south a distance of 2 miles and then turn east on a 'lease' road which would lead him to the well site. In traveling south it was necessary for appellant to pass over two cattleguards, the first of which was on the fence line 31 feet south of the south edge of the paved highway and which was some 12 inches higher than the highway. The other cattleguard was farther south, and both were painted with aluminum paint. To the north of the intersection, the county road was paved and there was a stop sign erected to warn drivers approaching the intersection from the north but there was no stop sign on the south side of the intersection to warn north bound drivers. Appellant had not observed that the county road extended north of the highway.

On August 27, 1961, about 7:00 p. m., appellant, having completed his work for the day, and a Mr. Keeling, sales manager for Worth Well Surveys, Inc., left the Atlantic well site for their respective homes but traveling in separate vehicles. They had agreed, however, to stop on the way at a restaurant in Jal for coffee. Keeling left the well site first and was followed by appellant driving a 1961 Chevrolet. At the intersection of the 'lease' road and the county road, appellant stopped and engaged in a conversation with a Mr. Langton for a short while. While there he again talked with Keeling by radio. He then started north traveling at a speed of 30 to 35 miles miles per hour, intending to turn left at the intersection.

Defendant Elms, driving a Halliburton truck 27 feet long and 8 feet wide with 10 wheels and weighing 40,000 to 50,000 pounds, was then approaching from the east on Highway 128 at a speed of 45 miles per hour, 5 miles under the maximum speed limit. The truck was equipped with various lights, all of which were burning. Its headlights were 3 1/2 feet above the ground. The cab had 5 clearance lights visible from the front. Its identification lights were 9 feet 5 inches above ground level and which could be seen from a 45 degree angle.

Appellant saw the first cattleguard when he was some 50 feet south of it and then slowed down to 30 miles per hour. Due to the elevation of the cattleguard, he could not see the highway until he had reached the cattleguard. It was when the front of his vehicle passed over the cattleguard that his headlights brought the highway into view. Skid marks laid down from his vehicle began 12 feet north of the north edge of the cattleguard and continued to the point of impact, a distance of 34 feet and 5 inches. The collision partially disabled the truck's banking system and it came to rest 142 feet west of the...