Pettes v. Jones.

• Citation: 41 N.M. 167,66 P.2d 967
• Decision Date: 29 March 1937
• Docket Number: No. 4151.,4151.
• Parties: PETTESv.JONES.
• Court: Supreme Court of New Mexico

41 N.M. 167

66 P.2d 967

PETTES

v.JONES.

No. 4151.

Supreme Court of New Mexico.

March 29, 1937.

Appeal from District Court, Dona Ana County; Numa C. Frenger, Judge.

Action by Robert A. Pettes against Oscar Jones. From a judgment for plaintiff, defendant appeals.

Reversed and remanded with directions.

J. Benson Newell, of Las Cruces, for appellant.Wayne C. Whatley, of Las Cruces, for appellee.

BICKLEY, Justice.

Plaintiff (appellee) sued defendant in the district court of Dona Ana county for damages by reason of personal injuries allegedly sustained in an automobile collision. Trial being before a jury, plaintiff had judgment for $375 on the general verdict in his favor for that amount. Defendant appeals and assigns one error, viz., the refusal of the trial court to render judgment in his favor upon the jury's answer to a special interrogatory submitted at his request which he maintains is in irreconcilable conflict with the general verdict.

The evidence is omitted from the record. We have only the pleadings, instructions, general and special verdicts, motions incident thereto, judgment containing order allowing appeal and præcipe. From so much of the record as is before us, it appears the ground of negligence asserted is the claimed careless act of defendant in propelling his automobile into the rear of plaintiff's car, which was traveling in the same direction, causing the injuries complained of.

The defendant, although admitting that his car struck the rear portion of plaintiff's car, as claimed, denied generally the allegation of negligence made by plaintiff. The collision having occurred in the nighttime, the defendant pleaded contributory negligence on plaintiff's part in this: “That at the time of the accident complained of there was no tail light or rear light exhibiting a red or yellow light plainly visible for a distance of five hundred feet to the rear of said car; and in fact there was no bulb in the tail light on the occasion of said accident.”

In so pleading the defendant obviously sought to charge a violation of Comp.St. 1929, § 11-847, requiring the presence of taillights on motor vehicles. The trial court charged the jury that failure to observe a statutory duty or requirement was negligence per se. It defined negligence and contributory negligence and “proximate cause” in the usual form and in a manner satisfactory to the parties. The material substance of the instructions was that if the plaintiff sustained the injuries alleged and established negligence of defendant, and plaintiff was injured as a proximate cause of such negligence, the verdict should be for the plaintiff, unless defendant established that plaintiff was negligent at the same time and that plaintiff's negligence proximately contributed to the collision, and if defendant established these things, the verdict should be for defendant.

At defendant's request certain special interrogatories were submitted, reading:

“Special Findings.

“We, the Jury, find the special findings submitted, as follows:

“(a) ‘Was Pettes' Truck equipped with a tail light at the time of the accident which exhibited a red or yellow light plainly visible for a distance of 500 feet to the rear of said Truck?’ We find and answer: (Signed) No.

“(b) ‘Did the failure of Pettes' truck to be equipped with a tail light contribute to any extent to cause the collision?’ We find the Answer: (Signed) Yes.

“[Signed] Pedro Maese, Foreman.”

Upon the return of such verdicts the defendant moved for judgment non obstante veredicto. This motion was formally denied in the judgment in plaintiff's favor on the general verdict. Claimed error in its denial, as we have hereinabove pointed out, presents the sole question for decision.

We must determine whether the special findings are inconsistent with the general verdict. If so, the former shall control the latter. “Trial Court Rules,” § 70-103. However, before declaring a conflict, an effort should be made to reconcile apparent inconsistency. In order to prevail, the special finding should clearly exclude every reasonable conclusion that would authorize the general verdict. Moreover, no presumptions will be indulged in favor of answers to special findings as against the general verdict. But “the very purpose of special findings is to test the validity of the general verdict by ascertaining whether or not it may have been the result of a misapplication of the law to actual findings in material conflict with the findings which in their absence would be implied from the general verdict. In other words, the response of the jury to the special issues or particular questions of fact may show that no judgment can properly be entered in favor of a plaintiff upon a general verdict because the jury has not found in his favor upon some material issue, or has found against him as to some fact fatal to his cause of action.” Plyler v. Pacific Portland Cement Co., 152 Cal. 125, 92 P. 56, 59.

Bearing in mind these applicable rules of construction, we are forced to the conclusion that there is here shown such inconsistency as will vitiate the general verdict. The plaintiff is found negligent through failure to comply with the statute requiring taillights. But before that negligence, under instructions given, should bar recovery, it must be such as “combined and concurred with the defendant's negligence, and contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred”; in other words, plaintiff's negligence must have proximately contributed to his injury in order to defeat his recovery.

The general verdict inferentially carried the finding of defendant's negligence and that such negligence was a “proximate cause” of plaintiff's injuries. That inference is no stronger than that the special findings that the failure of Pettes to have his truck equipped with a taillight was negligence and that such failure contributed to the collision carried a finding that such negligent failure of the plaintiff to comply with the statute was a “proximate cause” of such injuries. Neither the general nor special verdict employed the phrase “proximate cause.”

So we have a case where it will be important to understand the meaning of the phrase “proximate cause” and the methods of ascertaining its existence in a particular case.

It seems so obvious that the special findings are inconsistent with the general verdict that no argument should be necessary. Since all are not in agreement, it seems advisable to invoke support for our conclusion.

First, there is abundant precedent to support it and none against it. The Supreme Court of Kansas in Lathrop v. Miller (1931) 132 Kan. 425, 295 P. 722, 723, dealt with a similar case. The action was brought by Mary Lathrop against Burke Miller to recover damages sustained to her when an automobile driven by defendant was run against her. She recovered damages and the defendant appealed. With the verdict in favor of plaintiff, there were a number of special findings returned by the jury. One of these was as follows:

“8. Do you find that plaintiff by her own negligence contributed to the injury complained of? A. Yes. ***

“Upon the evidence the jury has expressly found that plaintiff by her own negligence contributed to her injury. So often has it been decided that special findings in conflict with the general verdict control the general verdict, that citations of authority are hardly justified. ***

“Assuming that there was negligence, on the part of the defendant, and that the ordinary negligence of the plaintiff contributed to her injury, there is no escape from the conclusion that it bars a recovery of damages for the injuries she sustained. Plaintiff contends that, while the jury found contributory negligence on her part, the finding does not necessarily mean that her negligence was the proximate cause of the injury. Even if [it] was not the primary cause, but did contribute in a degree, it must be interpreted as a proximate and not a remote cause. *** The effect of the finding is that her acts and omissions contributed directly to the injury, and, where the negligence of the injured person is in part a contributing cause, it is to be regarded as a proximate cause.”

In the case at bar, in order for the general verdict to stand, we would have to conclude that the negligence of the defendant was the sole proximate cause of the collision. The jury by its special findings has said that such is not the case.

If the jury believed from the evidence that the defendant was driving so negligently and carelessly that the collision would have occurred even if the plaintiff's truck had been properly equipped with taillights, they would have answered the second interrogatory in the negative. They said that the acts of the defendant and the omission of the plaintiff concurred in causing the collision. To say that the omission of plaintiff with respect to taillights contributed to the collision and concurred with defendant's negligence to cause the injury is to repudiate the idea that the collision would have happened if the plaintiff's truck had been equipped with taillights, so we must conclude that the special verdict carried a finding that but for the negligence of the plaintiff, together with the negligence of the defendant, the collision would not have occurred.

In line with the decision of the Supreme Court of Kansas in Lathrop v. Miller, supra, we find a decision of the Commission of Appeals of Texas, Hines v. Foreman, 243 S.W. 479, 483. Foreman sued Hines as Director General of Railroads to recover damages because of a collision between an automobile driven by plaintiff and one of defendant's trains. Among other defenses, the railroad interposed the defense of contributory negligence on the part of plaintiff based on the allegation that plaintiff was driving his car without having a muffler cut-out thereon as required by law. The court said:

“The...