Rutledge v. Johnson

• Decision Date: 20 February 1970
• Docket Number: No. 8766,8766
• Citation: 465 P.2d 274,1970 NMSC 23,81 N.M. 217
• Parties: Lee RUTLEDGE and Lillian Rutledge, his wife, Plaintiffs-Appellees, v. James R. JOHNSON, Barbara A. Brown and Mr. & Mrs. Lewis F. Brown, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 274

465 P.2d 274

81 N.M. 217

Lee RUTLEDGE and Lillian Rutledge, his wife, Plaintiffs-Appellees, v. James R. JOHNSON, Barbara A. Brown and Mr. & Mrs. Lewis F Brown, Defendants-Appellants.

No. 8766.

Supreme Court of New Mexico.

Feb. 20, 1970.

Ussery, Burciaga & Parrish, Albuquerque, for appellants.

McAtee, Marchiondo & Michael, Charles G. Berry, Albuquerque, for appellees.

OPINION

SISK, Justice.

The plaintiff, Mrs. Rutledge, was injured when her automobile was struck by an automobile driven by the defendant, Barbara Brown. The trial court awarded damages to both plaintiffs against Miss Brown and her father, the defendant Lewis F. Brown.

On appeal, defendants rely on eight points, which they have argued under three separate contentions. Defendants first contend that the evidence was insufficient to support the trial court's findings to the effect that Miss Brown negligently ran into the rear of the car driven by Mrs. Rutledge, that the car driven by Miss Brown had defective brakes, and that she knew or should have known the car had defective brakes, and was, therefore, negligent in driving the car.

The evidence must be viewed by us in its most favorable light in support of these findings. If the evidence when so viewed, including the reasonable inferences therefrom, supports the findings then all contrary evidence and inferences must be disregarded. Fox v. Doak, 78 N.M. 743, 438 P.2d 153 (1968).

The accident occurred on May 22, 1965 when the car driven by Mrs. Rutledge was stopped for a traffic light and was hit in the rear by the car driven by Miss Brown. Miss Brown was driving a twelve-year-old car, owned by James Johnson, who testified that he paid $35.00 for the car, that a month before the accident he had received an unsafe vehicle citation, and that one of the problems had been insufficient brakes. He said that after the citation the brakes were adjusted at a service station and new brake fluid was obtained, and that he had no further problem with the brakes until he checked the car after the accident and found no braking power. Miss Brown testified that she knew that Johnson had had previous trouble with the brakes and had received a ticket for inadequate brakes. On one occasion she said that she did not know whether the brakes had been fixed before the accident, and later she testified that Johnson told her that they had been. One of Miss Brown's passengers at the time of the accident testified that on another occasion when Miss Brown was driving the car the brakes gave out and she stopped the car by using the emergency brake. Miss Brown said that she had borrowed the car quite a few times before the accident and that she had not driven the car again after the accident. She testified that immediately prior to the collision she had coasted for 100 yards and did not attempt to apply the brakes until she was about two car lengths behind Mrs. Rutledge's stopped car. She did not attempt to use either the horn or the emergency brake, and did not attempt to avoid the collision by turning into the vacant traffic lane on her right.

We do not imply that the evidence to which we refer is all of the evidence which supports the challenged findings, but we believe that considered together, and including reasonable inferences therefrom, it constitutes substantial evidence to support the trial court's findings that the collision resulted from Miss Brown's negligence. There is conflicting evidence, primarily from the testimony of Miss Brown and James Johnson, which supports the claimed defense of brake failure. However, the court reviewed that evidence and we cannot pass upon the weight of the evidence or the credibility of the witnesses. Gilon v. Franco, 77 N.M. 786, 427 P.2d 666 (1967). The evidence substantially supports the trial court's decision on the issue of liability, and the defendants' requested findings and conclusions pertaining to the liability issue, being contrary to or inconsistent with those of the court, were properly rejected. Powers v. Campbell, 79 N.M. 302, 442 P.2d 792 (1968).

Defendants next contend that the court erred in making three findings on the issue of damages and in failing to make numerous findings requested by them on that issue. The issue of damages presents a more difficult problem, because in a period of less than ten months after the automobile accident Mrs. Rutledge sustained three separate and somewhat bizarre accidents in her home, in each of which she suffered additional injuries or aggravated her prior injuries. On August 28, 1965, her washing machine broke loose from the floor and in her efforts to control it she sustained ligamentous, muscular and disc injury. In September or October, 1965, she ran into a closed door and sustained a severe extension injury of the cervical spine. In February, 1966, she fell while pulling on a drapery cord and many of her previous symptoms recurred.

Before briefly reviewing the medical testimony, it is important to examine the three findings of the trial court on the issue of damages.

'10. As a direct and proximate result of the negligence of defendants and each of them, plaintiff Lillian Rutledge suffered severe, permanent injuries to her neck, shoulders, upper back and cervical spine, suffered mental pain and anguish, physical pain and suffering, and will continue to endure mental and physical pain and suffering, suffered loss of wages and permanent disability to her neck and back.

'11. Excluding any injuries suffered by plaintiff Lillian Rutledge after May 22, 1965, which are not as a result of the negligence of the defendants, the plaintiff is entitled to recover for the injuries suffered by her, described above, which are a direct proximate result of the negligence of defendants and each of them and is entitled to judgment against defendants and each of them, both jointly and severally, in the sum of $12,500.00.

'12. That as a direct and proximate result of the negligence of defendants and each of them, plaintiff Lee Rutledge incurred hospital, doctor, drug, and other medical expenses in behalf of his wife, and incurred transportation expense, automobile damage, was required to purchase orthopedic cervical collars and traction stands for his wife, was required to employ domestic help, and suffered the loss of services of his wife as a housekeeper for an extended period of time, and by reason thereof is entitled to recover judgment against defendants and each of them in the sum of $5,000.00 plus the costs of this action and interest thereon.'

Defendants contend that these three findings are erroneous because they award damages for injuries not proximately resulting from the automobile accident. However, finding No. 11 clearly states that the award to Mrs. Rutledge excludes any injury not a result of the automobile accident and states that the award is for those injuries described in finding No. 10. The items described in finding No. 10 are legally compensable. See Jones v. Pollock, 72 N.M. 315, 383 P.2d 271 (1963).

If there is substantial evidence that each item proximately resulted from the automobile accident, then findings Nos. 10 and 11 are not erroneous. Michael v. West, 76 N.M. 118, 412 P.2d 549 (1966). Again, the evidence must be viewed in the most favorable light in support of these findings. Fox v. Doak, supra.

The only doctor who testified concerning Mrs. Rutledge's injuries and treatment was Dr. W. C. Peterson. His testimony was very lengthy, and we will summarize it only to the extent necessary to determine whether it substantially supports the court's findings. In July, 1965, a discogram test was performed and indicated injury to and deterioration of the C2--3, C3--4, C5--6 and C6--7 vertebral disc interspaces. The doctor testified that these injuries resulted from the automobile accident. An operation fusing the C4--5 and C5--6 vertebrae was performed a few days later. Mrs. Rutledge was hospitalized for 23 days, of which 16 days preceded and 7 days followed the surgery. A second operation fusing the C6--7 and C7--D1 vertebrae was performed in January, 1966, resulting in 11 days hospitalization. Dr. Peterson described repeated examination and treatment from June 1965 to November 1967. His final diagnosis was:

'* * * cervical syndrome, severe, with surgical arthrodesis of C--4--5, C--5--6, C--6--7 and C--7 D--1, symptomatic, with restriction of range of motion, headache, and radiation to the arms, the right being predominant; and low back pain with bilateral radiation, the left being most severe.'

He noted continued difficulty in movement, blurring of vision,...