Ortega v. Koury, 5289

• Decision Date: 14 February 1951
• Docket Number: No. 5289,5289
• Citation: 55 N.M. 142,1951 NMSC 11,227 P.2d 941
• Parties: ORTEGA et al. v. KOURY.
• Court: New Mexico Supreme Court

Page 941

227 P.2d 941

55 N.M. 142

ORTEGA et al. v. KOURY.

No. 5289.

Supreme Court of New Mexico.

Feb. 14, 1951.

H. A. Kiker, Manuel A. Sanchez, Santa Fe, for appellant.

F. A. Catron, Sante Fe, for appellee.

LUJAN, Chief Justice.

The plaintiff brought this action to recover damages for the death of his son, a child about 3 1/2 years of age, alleged to have been caused by the negligent operation of an automobile owned and driven by the defendant. The accident happened on May 15, 1948, between the hours of twelve noon and one o'clock, in the city of Santa Fe. The case was tried to the court without a jury. It resolved the issues in favor of the defendant and the plaintiff appeals.

The defendant (appellee) was driving northerly on Irvine Street in the City of Santa Fe. The day was bright and sunny. The street was hard surfaced and 21 feet wide between the east and west lines. There were no other cars or other obstructions upon the street interfering with the defendant's view or his operation of the car. The defendant had a clear view for approximately 600 feet ahead of him. He says that he was traveling between 10 and 15 miles an hour. A pool of blood and broken glass from the defendant's right front head lamp of his car were found ten feet from the east street line, a half foot from the middle of the street.

Camilo Vigil, a witness for the defendant, testified that he was sitting on the front seat of the car driven by the defendant and that just prior to the accident he saw a little boy coming out of a store which was located on the west side of the street. He further testified, as follows:

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'Q. How did you know that anything had been hit, that a child had been hit? A. I thought that the car had struck the child because I saw him running out of the store.

'Q. I don't understand what you mean, will you explain that? A. At the time we was coming in the car, and just before arriving to the store there was a little boy coming out of the store, and I don't know whether he went across the street or not, but anyway when we went right about in line with the store then is when I felt the bump.

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'Q. Now, when did you first know that a child had been struck? A. When we came in line with the store.

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'Q. Did you see any other children besides this one that you talked about coming out of the store? A. No, sir, just the one.'

On cross-examination he testified:

'Q. Are you sure that he is not the child who came out of the store? A. I'm not sure because I didn't see him right.

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'Q. The thing that made you tell Mr. Koury that you thought you had struck a child was the bump? A. When I felt the bump and when I saw the little boy run out of the store, and I thought the child had run towards the street.'

The defendant testified that he did not see the child that was killed nor any other child on the street at or prior to the fatal accident. This testimony is so inherently improbable as to be unworthy of belief.

So far as the record discloses, the only blood and broken glass found at the scene of the accident were ten feet from the east line of the street, thus showing conclusively that the point of impact was approximately one foot from the middle of the street. The defendant's explanation as to the broken glass from the front right head lamp of his car found (1/2) foot from the middle of the street is, that, it could have flown there. He testified: 'Well, you take here now, when you hit a person, maybe the momentum of the car dragged him to there, or maybe the shatter of the glass could fly 10 feet, or when you hit a body or anything you hit, it isn't going to fall right where you hit it, it could have really gone farther back.'

It is undisputed that the accident happened by the striking of the child with the right front head lamp of defendant's car. However, there is a dispute as to the point of impact. The defendant claims that the child was from 3 to 5 feet from the east side line of the street. The city policeman who investigated the accident testified that he found a pool of blood and broken glass from the defendant's right head lamp ten feet from the east line.

Physical facts and conditions may point so unerringly to the truth as to leave no room for a contrary conclusion based on reason or common sense, and under such circumstances the physical facts are not affected by sworn testimony which in mere words conflicts with them. When the surrounding facts and circumstances make the story of a witness incredible, or when the testimony is inherently improbable, such evidence is not substantial. In State v. Armijo, 35 N.M. 533, 2 P.2d 1075, 1080, we said: '* * * But when the evidence itself is incredible, and in parts plainly fabricated, and, as a whole, convinces the mind that the truth is still suppressed, the point is reached, as it seems to us, where an appellate court should intervene. The verdict rests upon evidence which fails to meet any test of truth. We consider it unsubstantial.'

Plaintiff's Exhibit No. 1 is a photograph of the street. Indeed the picture demonstrates that there were no obstructions which could have prevented the defendant from seeing the child at a distance of more than 600 feet, had he been keeping a proper lookout for objects on the street. It was his duty to keep a lookout and actually see what was in the street that he was using, and a failure so to do constitutes negligence on his part. Ryczko v. Klenotich, 204 App.Div. 693, 198 N.Y.S. 473. In 60 C.J.S., Motor Vehicles, sub-section (c) of Sec. 284, p. 667, the author states the rule as follows: 'Cognizance of What Is Looked at and May Be Seen.

'In order to keep a proper lookout, a motorist must do more than merely look; it is his duty to see and be cognizant of what is in plain view or obviously apparent, and he is chargeable with seeing what he should have seen, but not with what he could not have seen in the exercise of ordinary care.

'Merely looking is not sufficient performance of the motorist's duty to keep a proper lookout. It is his duty, unless some reasonable excuse or explanation for not seeing is shown, to see what is in plain view or obviously apparent, or the things which a person in the exercise of due care and caution would see under like or similar circumstances, and to be cognizant of them and utilize the information obtained to prevent injury to himself and others. He is not absolved from liability by a failure to see what he could have seen by the exercise of due diligence, but is chargeable with seeing what he should have seen, or that which is apparent or in plain view, or which he could have seen had he looked, or with knowledge of all that a prudent and vigilant operator would have seen.'

In Gregware v. Poliquin, 135 Me. 139, 190 A. 811, 813, the court said: 'This court has repeatedly called attention to the settled and salutory rule that an automobile driver is bound to use his eyes and to see seasonably that which is open and apparent and govern himself suitably. Whenever it is the duty of a person to look for danger, mere looking will not suffice. One is bound to see what is obviously apparent. If the failure of a motor vehicle operator to see that which by the exercise of reasonable care he should have seen is the proximate cause of an injury to another, he is liable in damages for his negligence.'

And in Bramley v. Dilworth, 6 Cir., 274 F. 267, 272, the court said: 'He (the defendant) was not only required to look, but he must look in such an intelligent and careful manner as will enable him to see the things which a person in the exercise of ordinary care and caution, for his own safety and the safety of others, would have seen under like circumstances.'

Our laws require that all persons who drive automobiles on public highways within the State must do so in a careful manner. Section 68-501, 1941 Comp., provides in part as follows: '(a) The driver or operator of any vehicle in or upon public highways within this state shall drive or operate such vehicle in a careful manner, with due regard for safety and convenience of pedestrians * * *.'

In Johnson v. Herring, 89 Mont. 420, 300 P. 535, (a case similar to the one at bar) an action to recover for the death of a six-year old child as the result of being struck by the defendant's truck while it was being driven on a bright, clear day through an alley 20 feet wide, which was straight, level, and free from any obstruction to view or passage, and it appeared that the plaintiff's intestate was from 25 to 30 feet in front of the truck at the time when another boy jumped out of its way, and that the decedent had started across the alley towards his home and had reached the middle thereof when he was overtaken by the truck, knocked down, and run over, although the driver of the truck testified that he did not see the boy until he stopped the truck near the end of the alley because he felt a 'bump', and, looking back, saw the boy lying on the ground, the court held reversing a judgment of nonsuit, that the plaintiff had made out a prima facie case which, in the absence of any explanation of the accident and the circumstances surrounding it, would sustain a verdict in his favor. 92 A.L.R. note on p. 1110.

Upon the evidence presented by the defendant himself, we can only reach the conclusion that, if the defendant did not try to pass around the child when it was in the middle of the street, (where the broken glass and blood were found), without stopping his car, taking a chance of not striking it, then he must have failed to exercise that reasonable care of observing what was ahead of him in the street which would have caused him to discover the child's peril in time to avoid the accident. In either case, because of his unobstructed view and unobstructed opportunity to freely drive his car upon any portion of the street, he was negligent. The findings made by the court on the issue of...