Rogers v. Thomas
| Decision Date | 10 July 1970 |
| Docket Number | No. 425,425 |
| Citation | 1970 NMCA 89,81 N.M. 723,472 P.2d 986 |
| Parties | D. V. ROGERS, Administrator of the Estate of Clarence L. Rogers, Plaintiff-Appellant, v. Victor L. THOMAS and Jack H. Thomas, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
Plaintiff brought suit under our Wrongful Death Act (§§ 22--20--1 and 3, N.M.S.A.1953, and §§ 22--20--2 and 4, N.M.S.A.1953 (Supp.1969)), for the alleged wrongful death of decedent, Clarence L. Rogers. From a judgment entered upon a jury verdict in favor of defendants, plaintiff appeals. Five separate points are relied upon for reversal, but we consider only one, which requires reversal and remand for a new trial.
Plaintiff urges, and we agree, that the trial court erred in refusing to give the following requested instruction to the jury:
'There was in force in the city at the time of the occurrence in question a certain ordinance which provided that:
'If you find from the evidence that the defendant conducted himself in violation of this ordinance you are instructed that such conduct constituted negligence as a matter of law.'
It is not disputed that the ordinance was in force at the time of the collision out of which this cause arises and was properly before the court. This ordinance is substantially the same as § 64--18--17(a), N.M.S.A. 1953 (Repl. 9, pt. 2). Defendants do not dispute plaintiff's position that a party to a suit is entitled to have the jury instructed on all correct legal theories of his case which are supported by substantial evidence. Stephens v. Dulaney, 78 N.M. 53, 428 P.2d 27 (1967). It is not disputed that the violation of this ordinance constitutes negligence per se, or as a matter of law. McKeough v. Ryan, 79 N.M. 520, 455 P.2d 585 (1968); Fitzgerald v. Valdez, 77 N.M. 769, 427 F.2d 655 (1967). Nor is there any question raised as to the correctness of the form of the instruction.
However, defendants contend the evidence was insufficient to warrant giving the instruction. With this we disagree.
There was evidence that defendant driver followed a Pontiac automobile for a considerable distance on the north-south freeway through Albuquerque. They were travelling in the middle lane of the three lanes for southbound traffic, as was the vehicle in which decedent was...
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...entitled to instructions on its theory of the case. Hill v. Burnworth, 85 N.M. 615, 514 P.2d 1312 (Ct.App.1973); Rogers v. Thomas, 81 N.M. 723, 472 P.2d 986 (Ct.App. 1970). We suggest that defendant's version of the fact be stated immediately after the trial court instructs that defendant d......
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...and the condition of the highway." Violation of this statute constitutes negligence as a matter of law. See Rogers v. Thomas, 81 N.M. 723, 724, 472 P.2d 986, 987 (Ct.App. 1970); see also Fitzgerald v. Valdez, 77 N.M. 769, 773, 427 P.2d 655, 657 (1967) ("Statutory violations are negligence p......
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Ciesielski v. Waterman, 1166
...whether there is substantial evidence to justify an instruction upon plaintiff's theory of the case. See Rogers v. Thomas, 81 N.M. 723, 472 P.2d 986 (Ct.App.1970); Harless v. Ewing, 81 N.M. 541, 469 P.2d 520 (Ct.App.1970). The facts can be summarized as follows: Plaintiff backed his trailer......
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LaBarge v. Stewart
...to have the jury instructed on all correct legal theories of his case which are supported by substantial evidence. Rogers v. Thomas, 81 N.M. 723, 472 P.2d 986 (Ct.App.1970). We do not depart from that The court's refusal to give the involuntary manslaughter instruction was correct. The seco......