Moore v. Armstrong, 6662

• Decision Date: 13 September 1960
• Docket Number: No. 6662,6662
• Citation: 1960 NMSC 98,355 P.2d 284,67 N.M. 350
• Parties: Arthur L. MOORE, Plaintiff-Appellee, v. Florence W. ARMSTROING and Andrew F. Armstrong, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 284

355 P.2d 284

67 N.M. 350

Arthur L. MOORE, Plaintiff-Appellee, v. Florence W. ARMSTROING and Andrew F. Armstrong, Defendants-Appellants.

No. 6662.

Supreme Court of New Mexico.

Sept. 13, 1960.

W. C. Whatley, Raymond E. Riordan, Las Cruces, for appellants.

T. K. Campbell, Las Cruces, for appellee.

MOISE, Justice.

Defendant-appellant appeals from a judgment against her in the amount of $360.00 growing out of an automobile accident.

It appears that defendant was driving her 1956 Volkswagon bus east on Mountain Avenue in Las Cruces at a speed of 5 to 10 miles per hour when she decided to make a left turn into a roadway leading to the north to a street known as Farney Road. Mountain Avenue is a two-lane black topped street. The roadway to the north, now known as Turrentine Drive, was unpaved and to enter it, there was a decline of some four feet from the level of Mountain Avenue.

Immediately before starting to turn to her left defendant had looked in her rearview mirror and had seen plaintiff's 1951 Oldsmobile some 60 to 65 feet behind her. It appears that plaintiff was traveling at a speed of 30 to 35 miles per hour, and without giving any signal by horn or otherwise started around defendant. When plaintiff was in the process of passing defendant on the left, defendant started to make a turn to the left into the roadway, Turrentine Road, without giving any signal, and in order to avoid a collision with her, plaintiff pulled off sharply to the left sideswiping a tree and then careening into a second tree, resulting in the demolishing of plaintiff's car and damages to him in the amount for which judgment was entered.

Appellant argues two claimed errors, viz., (1) that the court erred in finding negligence on the part of defendant and that this negligence was the sole proximate cause of plaintiff's damages, and (2) that the court erred in its finding No. 3 to the effect that the road into which defendant was about to turn was not a public highway within the meaning of the statute, but was a private road, and that the point of its intersecting with Mountain Avenue was not an intersection of two highway within the meaning of the statute.

Concerning the first point, it should be apparent that under our oft repeated rule of decision findings of a trial court of negligence and absence of contributory negligence will not be disturbed on appeal unless not supported by any substantial evidence and reasonable inferences growing therefrom or unless reasonable minds cannot differ concerning a contrary result. Ashley v. Fearn, 64 N.M. 51, 323 P.2d 1093; Perini v. Perini, 64 N.M. 79, 324 P.2d 779; Hisaw v. Hendrix, 54 N.M. 119, 215 P.2d 598, 22 A.L.R.2d 285.

In the instant case there was conflicting testimony concerning defendant having given a signal of her intention to turn, and the court found no signal was given and that this was negligence on the part of defendant which caused the accident. Under the rule stated above, the judgment must be upheld unless the court erred in its finding and conclusion that plaintiff was not contributorily negligent as a matter of law so as to bar recovery by virtue of his action in attempting to pass defendant at the place where he did.

Defendant's argument under her second point in support of her position that the court erred is to the effect that the road now called Turrentine Road is a public highway under Sec. 55-1-1, N.M.S.A.1953, and where it meets Mountain Avenue is an intersection under Sec. 64-14-17, N.M.S.A.1953, and that plaintiff's actions in attempting to pass where he did constituted a violation of Sec. 64-18-13, N.M.S.A.1953, and negligence per se...