Russell v. Davis.

• Citation: 37 P.2d 536,38 N.M. 533
• Decision Date: 22 October 1934
• Docket Number: No. 3949.,3949.
• Parties: RUSSELLv.DAVIS.
• Court: Supreme Court of New Mexico

38 N.M. 533

37 P.2d 536

RUSSELL

v.DAVIS.

No. 3949.

Supreme Court of New Mexico.

Oct. 22, 1934.Rehearing Denied Nov. 21, 1934.

Appeal from District Court, Otero County; Harry P. Owen, Judge.

Action by Robert L. Russell, administrator of the estate of C. M. Russell, deceased, against Roy T. Davis. From a judgment for plaintiff, defendant appeals.

Affirmed.

Contributory negligence is for jury where fair-minded persons might differ.

Reid & Iden, of Albuquerque, for appellant.

J. S. Vaught, of Albuquerque, for appellee.

ZINN, Justice.

This is an appeal from a verdict and judgment in the district court of Otero county, awarding appellee, administrator of the estate of C. M. Russell, deceased, the sum of $10,000 against appellant, Roy T. Davis, on account of a fatal collision between appellant, the driver of an automobile, and appellee's intestate, a pedestrian.

Appellant was traveling in a Hudson coach from El Paso, Tex., in a northerly direction toward Las Cruces, N. M., on United States Highways No. 80 and No. 85. This highway, sixteen feet wide, of concrete, carries a considerable amount of automobile traffic.

At Berino, a small settlement located nineteen miles south of Las Cruces on this highway, B. W. Russell, son of the deceased, was operating a garage and filling station, located by the side and a short distance to the east of said highway. There is a “School Zone” sign to the south of the filling station, but no other warning signs. Standing at the filling station the highway is visible to the south a distance of at least one-half mile.

The Santa Fé Railroad parallels the highway at Berino on the west. The deceased, of the age of sixty-six years, was standing at the south corner of the filling station, talking to his son B. W. Russell, when a train on which another son, Robert L. Russell, employed as a train man, came into the Berino station and stopped at a point opposite the filling station. Robert L. Russell, seeing his father standing by the filling station, signaled him to come across the highway. The deceased started across the road toward the train when B. W. Russell, standing about ten steps to the east of the pavement, noticed a truck coming from the north. He called to deceased to wait until the truck had passed. The deceased stopped. After the truck passed B. W. Russell looked both ways and, seeing no car from either direction, told deceased to go ahead. The deceased was at that time standing about two steps east of the pavement. The deceased started straight across the highway when the appellant's car was about 200 feet down the highway, coming from the south. When deceased was about the center of the road, or a little past the center towards the west, he looked to the south. As the car of appellant came closer to deceased it swerved to the west, or left side of the road. The deceased started to run and ran toward the west edge of the pavement. The radiator of the car just missed deceased, who then turned his back to the car and was facing to the east when the right rear glass in the car hit him in the back of the head throwing him to the pavement, from which collision he died.

Appellant was driving his car at sixty miles per hour, or more. The statutory rule of the road in effect then was forty-five miles per hour. 1929 Comp. St. § 11-801 (b) (7). On sighting the deceased, appellant applied his brakes, and exact measurements taken from rubber marks on the pavement showed that the wheels had slid for a distance of 35 feet on the pavement before striking deceased, and slid an additional 177 feet after striking deceased, making a total of 212 feet. The appellant stated shortly after the accident that he was driving too fast and did not know what made him go on the wrong side of the road.

It is the theory of appellee that if the appellant had stayed on the right side of the road where there was nothing to obstruct him, the deceased would be living to-day. Also, had the appellant been driving his car at a rate of speed so that it could have been controlled by him, the accident would not have occurred. Appellee charged that the appellant drove his car in a reckless manner and in wanton disregard of the rights and safety of others and at a speed to endanger others contrary to 1929 Comp. St. § 11-803, and in violation of the statutory rules of the road, to wit: 1929 Comp. St. § 11-804 (a), (b) (7), and section 11-225 (a).

There is, of course, conflict between the appellee and the appellant's evidence as to just what occurred, as to the speed of the automobile, and other matters.

Appellant is here contending that under the facts the deceased was negligent per se; that the rule to be applied to a situation of this kind is that applied by the courts in railroad crossing accidents; that is, as a matter of law, a pedestrian is negligent per se who enters upon a main traveled highway without first stopping, looking, and listening. Appellant contends greater care and caution ought to be imposed upon a traveler on foot attempting to cross a highway under the conditions surrounding this accident than upon a motorist who goes on a railroad crossing. Appellant argues that the standard of conduct, prescribed by the Supreme Court of the United States in the case of B. & O. R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 25, 72 L. Ed. 167, 56 A. L. R. 645, where it said: “When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train not the train stop for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk,” should apply with equal or greater force to a man attempting to cross on foot a main and heavily traveled highway, such as this was, because any automobile traveling by the filling station was just as dangerous an agency, if it should strike the pedestrian, as a locomotive, with this difference that probably a vehicle passes over the highway at this point once every minute or two, while trains probably do not average one every thirty minutes over the usual railroad crossing.

Appellant cites in support of his theory the recent case of Standard Oil Co. of Kentucky et al. v. Noakes, 59 F.(2d) 897, 898, decided by the Circuit Court of Appeals, Sixth Circuit, on June 27, 1932, where the court said: “While the question of due care is very generally left to the jury, nevertheless when dealing with a standard of conduct, and when the standard is clear, it should be laid down once for all by the courts. Baltimore & Ohio Railroad v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645. Cf. New York Telephone Company v. Beckers, 30 F.(2d) 578 (C. C. A. 2). We need not consider whether the standard of conduct applied to one approaching a railroad crossing is to be applied to one approaching an automobile highway, nor whether the standard applicable to the driver of an automobile is to be applied to a pedestrian. There can be no doubt that one who crosses a street between intersections and from behind a parked car, which not only obstructs his view but also the view of drivers of approaching cars, is under a duty to...