Pitner v. Loya

• Decision Date: 19 February 1960
• Docket Number: No. 6471,6471
• Citation: 1960 NMSC 24,350 P.2d 230,67 N.M. 1
• Parties: W. A. PITNER, Plaintiff-Appellant, v. Max LOYA, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 230

350 P.2d 230

67 N.M. 1

W. A. PITNER, Plaintiff-Appellant, v. Max LOYA, Defendant-Appellee.

No. 6471.

Supreme Court of New Mexico.

Feb. 19, 1960.

Rehearing Denied March 29, 1960.

LaFel E. Oman, Edward E. Triviz, Las Cruces, for appellant.

E. Forrest Sanders, William W. Bivins, Las Cruces, for appellee.

TACKETT, District Judge.

This matter comes up on appeal by the appellant-plaintiff from the District Court of Dona Ana County in which the appellant-plaintiff, W. A. Pitner, filed an action against the appellee-defendant, Max Loya, claiming damages as a result of an automobile accident. The parties will be referred to as they appeared in the trial court.

It is alleged that the automobile accident occurred on February 27, 1957, at about 8:00 o'clock p.m., approximately fourteen miles south of Las Cruces, New Mexico, on the new of upper U. S. Highway 80-85. The plaintiff had been riding in a 1938 panel Ford vehicle owned and operated by John A. Romero. The vehicle was proceeding north, became disabled and stopped on the highway and Mr. Romero spent several minutes trying to start it, inspecting the motor, et cetera; that subsequently the plaintiff, Mr. Romero, and a 12-year old child, who was riding with them, were in the process of pushing the vehicle from the highway when the defendant, who was driving his 1948 Buick automobile, also proceeding in a northerly direction, collided wiht the plaintiff, who was at or near the right rear of the Ford vehicle. Evidence also given indicated that the left front and rear wheels of the panel truck were three feet from the center line.

The plaintiff filed a first amended complaint seeking judgment for personal injuries, medical, nursing, hospital, drug and other expenses incurred, on the theory that defendant was negligent in driving and operating his Buick automobile into and against the plaintiff. The plaintiff also pleaded that the defendant had the last clear chance to avoid the accident and resulting injuries and damages to plaintiff. Thereafter certain motions were filed, which were disposed of by the trial court. The defendant filed an answer to the complaint in which he admitted that he was driving and operating a Buick automobile in a northerly direction upon U. S. Highway 80-85 south of Las Cruces, New Mexico. He denied generally the allegations of the complaint and pleaded contributory negligence on the part of the plaintiff, unavoidable accident and a joint-venture between plaintiff and John A. Romero, and further alleged that John A. Romero was negligent and his negligence proximately contributed to cause the plaintiff's injuries and damages.

The cause was tried before the court and jury at Las Cruces, New Mexico, on March 20, 1958, and the jury returned a verdict in favor of the defendant. The plaintiff moved the court to strike from the answer certain allegations as to illegal parking, crosswalks and traffic controls, unavoidable accident and joint venture. The court sustained the motion in part and ordered stricken the allegations as to crosswalks, parking and joint venture but overruled the motion to strike the defense of unavoidable accident.

It appeared on February 27, 1957, the plaintiff was 69 years of age, was residing with his daugher and son-in-law at Hill, New Mexico. He had no regular employment but worked around a wrecking yard operated by his son-in-law in Las Cruces, New Mexico. On this particular day he had gone from Las Cruces to El Paso in an International truck loaded with junk and driven by Carl Inman.

On the return trip from El Paso the International truck became disabled about eight miles north of Anthony. Carl Inman came into Las Cruces for help and Mr. John A. Romero, who was employed at the time at the wrecking yard took Mr. Inman back to the International truck in a 1938 panel Ford vehicle. The plaintiff and Mr. Inman's boy had remained with the International truck and were there when Mr. Inman and Mr. Romero returned in the Ford panel truck.

Mr. Romero undertook to pull the International truck with his Ford panel truck by means of a tow chain. The International truck was started and Mr. Inman went on with it to Las Cruces. As a result of the towing operations the engine of the Ford became hot and Mr. Romero pulled off the shoulder of the highway and put water in the radiator. The plaintiff and the Inman boy were with him. Mr. Romero then started driving his Ford automobile toward Las Cruces and had gone something between fifty and three hundred feet when the Ford suddenly stopped. He tried to get the engine started with the starter and then looked under the hood, checked the engine and concluded a bearing had burned out. This was about 8:00 or 8:30 o'clock in the evening and after dark. Mr. Romero and Mr. Pitner decided to push the vehicle from the highway and they proceeded to do so with Mr. Romero on the left at the steering wheel, the boy pushing on the right door and Mr. Pitner at the rear. The vehicle had moved just about six or eight feet when the defendant collided with Mr. Pitner and the...