El Paso Electric Co. v. Surrency

• Citation: 169 F.2d 444
• Decision Date: 30 August 1948
• Docket Number: No. 3611,3612.,3611
• Parties: EL PASO ELECTRIC CO. v. SURRENCY (two cases).
• Court: U.S. Court of Appeals — Tenth Circuit

169 F.2d 444 (1948)

EL PASO ELECTRIC CO. v. SURRENCY (two cases).

Nos. 3611, 3612.

Circuit Court of Appeals Tenth Circuit.

August 9, 1948.

Rehearing Denied August 30, 1948.

A. K. Montgomery, of Seth & Montgomery, all of Santa Fe, N. M., for appellant.

W. C. Whatley and R. C. Garland, both of Las Cruces, N. M., for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

These actions were brought to recover damages for personal injuries suffered by appellee in an automobile collision and for certain expenses arising therefrom and for exemplary damages. The action in Number 3611 was brought by appellee in his individual capacity and the one in Number 3612 was instituted in his name as administrator of the estate of Willie Hassell Surrency, deceased. The two cases were consolidated for trial and were tried to a jury. In each case a verdict was returned for the plaintiff and judgment was entered thereon from which this appeal was taken. The parties will be referred to as they appeared in the court below.

The six assignments of error relied upon for reversal can be summarized and will be treated as follows:

1. The court erred in refusing to sustain defendant's motion to dismiss at the conclusion of plaintiff's evidence and in refusing to sustain its motion for a directed verdict at the conclusion of all the evidence.

2. The court erred in its instruction to the jury.

The allegations of the two complaints are substantially the same. In substance, plaintiff alleged that on the morning of September 26, 1945, he, accompanied by his wife, Willie Hassell Surrency, now deceased, was driving his wife's Buick car along U. S. Highway 80, a four lane paved highway approximately forty feet wide, the same being a transcontinental highway carrying heavy traffic; that when he was about a mile south of Bernino, New Mexico, and while on his right side of the road, a vehicle operated by Leon Hammett, accompanied by U. S. Corbin, employees of the defendant, without warning, negligently turned directly across the highway into the path of plaintiff's automobile in such close proximity that he had no time nor opportunity to avoid a collision with defendant's automobile and that plaintiff's automobile crashed into defendant's vehicle, a Chevrolet pickup truck, with such force and violence as to completely demolish both cars. The complaint alleged injuries sustained by his wife from which she died, and severe injuries to himself.

The allegations of the complaint charging negligence against the defendant are as follows:

"That after plaintiff's release from the hospital and upon investigation of the facts, he learned that the pick-up truck with which he collided was the property of the defendant, El Paso Electric Company, and that it was so defective and worn as to be unsafe for use on the highways, in that the mechanism thereof was in such condition that the vehicle could not be steered with any degree of certainty, and that such condition of said vehicle was at and prior to the time of said collision known to the employees and officials of the defendant company, notwithstanding which they continued to use the said vehicle and to drive it upon the highways knowing its unsafe condition and that the cause of such vehicle turning directly into the path of the plaintiff's vehicle was the impaired and delapidated and unsafe condition of the defendant's said pick-up truck, and the proximate cause of the injuries and damages to the plaintiff was the negligence of the defendant, its agents, servants, officers and employees in operating and causing and permitting such vehicle in its impaired and delapidated and unsafe condition to be driven over the highways of the state of New Mexico."

At the trial plaintiff testified that on the morning of September 26, 1945, he was driving the Buick car along Highway 80 in a southerly direction on the right hand side of the road at a speed of approximately 45 miles per hour; that he and his wife were a short distance out of Las Cruces and that there was no congestion of traffic on the highway. He testified that he had no recollection of what happened; that his last distinct recollection was that there was no apparent danger of any impending collision with another car and that his next recollection was waking up from a period of unconsciousness on the shoulder of the highway. Apparently the shock and injury which he suffered blacked out any recollection of what preceded the collision. Jack Taylor, a plaintiff witness, testified that he had worked for the defendant until about three days before the accident when he quit after having given notice to that effect. He testified that nearly every day that he worked for the defendant he drove the pickup truck in question; that the truck was worn out; that the wheels would shimmy; that the back springs were weak and would throw you out of control; that "you would be driving along and hit a place like that and the wheels would start shimmying and you would have to slow up. And at any time at all it would go out of gear." He testified that this was the condition of the truck at the time he quit three or four days before the accident. There seems to be no dispute in the testimony that the truck had not been repaired after he quit and prior to the accident. Taylor testified further that Mr. Breedlove, defendant's manager of all work, knew the condition of the truck and also that Corbin knew its condition. He testified that he and Hammett roomed together and discussed the condition of the truck. He also testified that he had talked with Hammett and Corbin just a few minutes before they left on the fateful trip; that they were in the pickup truck at the time it left town and that Leon Hammett was driving. Taylor followed them on a mission in the course of his employment and came upon the scene of the accident a few minutes after it occurred. He testified as to the physical appearances at the scene of the accident but since these conditions are not in dispute, his testimony in that respect will not be set out.

R. A. Durio, an automobile mechanic, testified for the plaintiff. He testified that he examined the front end of the Chevrolet pickup on the day of the trial; that his examination showed that the left front spring was broken between the axle and the anchor; that the left king pin had considerable wear and that the right king pin was not quite so bad; that when the pins become worn it has a tendency to make the car become a "road wanderer." On cross examination, he testified that in his experience he had seen cars with "as badly or worse worn king pins than that in service."

Alex E. Hood, another witness for plaintiff, testified that he was an automobile mechanic; that he examined the front end of the Chevrolet pickup including the steering apparatus, front springs and king pins. He testified that the "left king pin was a little bit loose, the right king pin was O.K. The spring on the hand side was broken, the main leaf was broken in back of the axle." On cross examination he testified that the left king pin was not in dangerous condition. H...