Roybal v. Lewis

• Decision Date: 22 April 1968
• Docket Number: No. 8504,8504
• Citation: 1968 NMSC 68,79 N.M. 227,441 P.2d 756
• Parties: Jose M. ROYBAL and Theresa Roybal, Plaintiffs-Appellants, v. Rex Elmer LEWIS and Bowman Biscuit Company, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 756

441 P.2d 756

79 N.M. 227

Jose M. ROYBAL and Theresa Roybal, Plaintiffs-Appellants, v. Rex Elmer LEWIS and Bowman Biscuit Company Defendants-Appellees.

No. 8504.

Supreme Court of New Mexico.

April 22, 1968.

Rehearing Denied June 17, 1968.

[79 NM 227] Arturo G. Ortega, William E. Snead, James E. Womack, A. H. McRae, Albuquerque, for appellants.

Rodey, Dickason, Sloan, Akin & Robb, Mark K. Adams, Albuquerque, for appellees.

OPINION

NOBLE, Justice.

Plaintiffs sued to recover damages growing out of an automobile accident. A jury found the issues in favor of the defendants. Plaintiffs have appealed from the judgment following the jury verdict.

Plaintiffs attack certain of the instructions given and the court's refusal to give others requested. They first complain of the giving of an instruction on unavoidable accident arguing that reasonable minds could not differ that this accident was caused by the negligence of someone and, accordingly, an unavoidable-accident instruction should not have been given. We cannot agree. In Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362, we said: 'The test is whether there is evidence from which the jury could conclude that the accident occurred without the negligence of anyone being the proximate cause.' See also Lucero v. Torres 67 N.M. 10, 350 P.2d 1028.

Failure of the truck's brakes and approaching too closely to plaintiffs' car before applying the brakes are asserted as negligence proximately causing the accident. The evidence that a brake line failed, resulting in loss of brake fluid and causing the brakes to fail, appears to be uncontradicted. We said in Ferran v. Jacquez, 68 N.M. 367, 362 P.2d 519, that § 64--20--41, N.M.S.A.1953, sets the minimum standards required for brakes and that an owner of a vehicle is guilty of negligence in permitting a vehicle on the highway with brakes which do not meet the standard set by statute, unless such failure is excused. Defendants point to evidence, (1) that Bowman Biscuit Company required its trucks to be inspected by a competent mechanic each thirty days; (2) that this truck had been so inspected sixteen days before the accident and found to have no brake malfunction; and (3) that the driver had tested the brakes immediately prior to starting on the morning of the accident and found them to be functioning properly.

It seems to be agreed that plaintiffs were following a car on a Santa Fe street and that the Bowman Biscuit Company truck, being driven by defendant Lewis, followed the Roybal car at a distance of about forty to fifty feet. The vehicles were traveling at about twenty miles an hour. The front car suddenly stopped and Roybal brought his car almost to a stop. Lewis applied his brakes when he was approximately twenty feet behind the Roybal car. The testimony as to whether the truck could have been stopped prior to striking plaintiffs' car, under the circumstances, if the brakes had been in proper condition, is conflicting. The questions of whether defendants were excused for not maintaining the brakes in accordance with statutory minimum requirements and whether Lewis approached too closely before attempting to apply his brakes were for the jury to determine.

Our decisions in Bailey v. Jeffries-Eaves, Inc., 76 N.M. 278, 414 P.2d 503; Hayes v. Hagemeier, 75 N.M. 70, 400 P.2d 945; Bouldin v. Sategna,71 N.M. 329, 378 P.2d 370; Sturgeon v. Clark, 69 N.M. 132, 364 P.2d 757; Scofield v. J. W. Jones Constr. Co., 64 N.M. 319, 328 P.2d 389; Zamora v. J. Korber & Co., 59 N.M. 33, 278 P.2d 569; Zanolini v. Ferguson-Steere Motor Co., 58 N.M. 96, 265 P.2d 983 and Williams v. Haas, 52 N.M. 9, 189 P.2d 632, do not require a different result. They only hold that violation of speed statutes constitutes negligence per se when such violation is the proximate cause of an injury, or that a party is entitled to an instruction in proper circumstances regard-in violations of statutes. The speed of the defendant's vehicle, since all three vehicles were traveling at approximately the same speed, is material only as it related to the duty of maintaining proper vigilance, or of following too closely under the circumstances. Those two were questions for the jury under proper instructions. The jury was correctly instructed on those issues by instructions 8 and 9. Hartford Fire Ins. Co. v. Horne, 65 N.M. 440, 338 P.2d 1067, and Langenegger v. McNally, 50 N.M. 96, 171 P.2d 316, only require instructions respecting applicable statutory violations by drivers of motor vehicles. We think the instructions in this case, read as a whole, properly instructed the jury in this respect. See Flanary v. Transport Trucking Stop 78 N.M. 797, 438 P.2d 637, decided March 1, 1968. We think the record shows evidence from which the jury could conclude that this accident occurred without the negligence of anyone being the proximate cause, and, accordingly, the giving of an unavoidable-accident instruction was not error.

Relying upon Stambaugh v. Hayes, 44 N.M. 443, 103 P.2d 640, plaintiffs argue that the unavoidable-accident instruction given is insufficient because it fails to advise the jury specifically how it should be applied to the facts. Stambaugh v. Hayes, supra; Martin v. Gomez, 69 N.M. 1, 363 P.2d 365, and Horrocks v. Rounds, 70 N.M. 73, 370 P.2d 799, indicate that the definition of unavoidable accident should be followed by its application on an assumed set of facts. However, it is well established...