Sandoval v. Brown

• Decision Date: 27 October 1959
• Docket Number: No. 6569,6569
• Citation: 1959 NMSC 87,346 P.2d 551,66 N.M. 235
• Parties: Tony SANDOVAL, Plaintiff-Appellant, v. Clarence Ray BROWN, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 551

346 P.2d 551

66 N.M. 235

Tony SANDOVAL, Plaintiff-Appellant, v. Clarence Ray BROWN, Defendant-Appellee.

No. 6569.

Supreme Court of New Mexico.

Oct. 27, 1959.

Rehearing Denied Dec. 7, 1959.

Smith, Kiker & Kitts, Epifanio Garcia, Jr., Albuquerque, Patricio S. Sanchez, Santa Fe, for appellant.

Rodey, Dickason, Sloan, Akin & Robb, Charles B. Larrabee, Albuquerque, for appellee.

MOISE, Justice.

This is an appeal from the action of the district court in instructing the jury to return a verdict for defendant-appellee at the close of plaintiff-appellant's presentation of evidence, for the announced reason that the evidence disclosed that plaintiff was guilty of contributory negligence such as would bar him from a recovery as a matter of law.

The only question involved is whether or not the court erred in so ruling.

In order to arrive at the correct answer to the problem it is necessary that the evidence be reviewed, and in this review we are bound to appraise the same in a light most favorable to the appellant indulging all favorable inferences in his favor to be drawn therefrom. Ferris v. Thomas Drilling Co., 62 N.M. 283, 309 P.2d 225; Thompson v. Dale, 59 N.M. 290, 283 P.2d 623; Chandler v. Battenfield, 55 N.M. 361, 233 P.2d 1047.

Such a review discloses the following facts. At about 8:20 p.m. on the night of March 6, 1957, the plaintiff was walking south on the east side of Coors Road in Albuquerque, New Mexico, two to four blocks south of where the same intersects Central Avenue, when a black car occupied by several people passed him travelling in a southerly direction. After this car passed him some little distance it made a left turn into a side road and went some 100 yards from the highway and turned off its lights. Plaintiff became concerned that there might be some danger to himself from the occupants of this car, and accordingly decided to cross to the west side of the highway. He looked to the south and saw the lights of two cars approaching, but decided to cross while he could get the benefit of the lights of these cars, and while he thought he had time to do so with safety.

As the plaintiff started across the road his attention was principally upon the parked car ahead and he didn't notice the approaching cars until they were upon him. At that time he was approximately in the center of the paved road, and he stood still at that point believing the cars could pass him.

The first car was a pickup with a structure built on it for carrying a horse. The driver put on the brakes, made a sharp turn to the left and missed him. This car came to a stop on the shoulder on the west side of the road and facing in the direction from which it had come. It left skid marks some 95 feet long. The second car was driven by defendant and was following some two car lengths behind the pickup. Because of the horse stall on the pickup the defendant could not see ahead of it. As soon as the brakes were applied on the pickup and the sudden left turn made by it, defendant put on his brakes. When the pickup was out of his way he released his brakes and then saw the plaintiff right in front of him whereupon he put on the brakes again, but the plaintiff was hit and injured. Defendant's tires left skid marks about 57 feet long in a straight line. No material damage was done to defendant's car.

A few additional uncontroverted facts are pertinent. Plaintiff was 57 years old and walked with a limp, having been released from the hospital only the day before after being treated for an ailment to his right leg. He was dressed in dark clothing. The place of the accident was in the City of Albuquerque. The road was 22 feet wide asphalt with approximately 12-foot shoulders on either side and was straight. It was dark at the time of the accident. There were no street or other lights to illuminate the road and there were no houses or other buildings in the immediate vicinity. The place of the accident was not a cross-walk, and Albuquerque has an ordinance making it a misdemeanor for pedestrians to cross a street or highway at other than a cross-walk. Defendant's speed was from 30 to 45 miles per hour immediately before the accident. His lights were working and were on dim. No car was coming from the opposite direction, and the west lane was open.

In the light of the foregoing can it be said that reasonable minds could not differ on the question of contributory negligence and its causal connection in plaintiff's injuries? It is conceded that the question of contributory negligence is ordinarily one of fact for the jury, and only if this question can be answered in the affirmative can the lower court be sustained. Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507; Sanchez v. Gomez, 57 N.M. 383, 259 P.2d 346.

Plaintiff concedes that in crossing the highway at a place other than a cross-walk contrary to the requirements of the city ordinance, he was guilty of negligence per se. However, he cites the cases of McMinn v. Thompson, 61 N.M. 387, 301 P.2d 326; Williams v. Haas, 52 N.M. 9, 189 P.2d 632; Curtis v. Schwartzman Packing Co., 61 N.M. 305, 299 P.2d 776; Terry v. Bisswell, 64 N.M. 153, 326 P.2d 89, and Scofield v. J. W. Jones Construction Co., 64 N.M. 319, 328 P.2d 389, all as holding that even though it is clear that the plaintiff has violated a statute or ordinance and accordingly is guilty of negligence himself, nevertheless, whether such negligence is such as will bar him from a recovery is one of fact for the jury.

It is plaintiff's position that in the light of the foregoing decisions 'it seems to be readily apparent that in this jurisdiction a trial court is not warranted in taking from the jury the issue of whether or not a pedestrian's negligence in crossing a thoroughfare in a manner prohibited by statute or ordinance constitutes such contributory negligence as is a proximate cause of injuries of which he complains.' Plaintiff states further 'that the trial court does not become invested with the power to direct a verdict for the defendant when it appears that a plaintiff-pedestrian was negligent as a matter of law in crossing a street or highway in a manner prohibited by statute. The question of whether or not such negligence constituted the proximate cause of a collision between a motorist's automobile and such pedestrian remains, and it is clear, from this Court's prior decisions, that this is a question which properly is to be determined by the jury.'

Plaintiff proceeds one additional step to assert that in the case of Russell v. Davis, 38 N.M. 533, 37 P.2d 536, this Court rejected in automobile-pedestrian cases the rule applicable in railroad crossing cases which hold that one struck by a train when-crossing a railroad track is barred from recovery as a matter of law because of his own contributory negligence in failing to stop, look and listen.

Defendant counters these arguments by pointing out that the cases cited by plaintiff are all merely cases where the court was considering whether or not violation by a plaintiff of an ordinance or statute bars a recovery by him as a matter of law, and argues that there was something more than the violation present here, and states that 'in no case cited by plaintiff is there the combination of aggravated facts and circumstances insofar as the plaintiff's conduct is concerned as in the case at bar.' He cites the case of Gray v. Esslinger, 46 N.M. 421, 130 P.2d 24, in support of his position that a verdict for defendant should be instructed in a proper case, and in addition numerous cases from other jurisdictions.

We have carefully reexamined the cases cited by plaintiff, and are of the opinion that if the rule asserted by plaintiff is to the effect that the question of whether or not negligence by a plaintiff in violating an ordinance or statute contributed proximately to an accident so as to bar a recovery is always for the jury, he paints with too broad a brush. McMinn v. Thompson, supra, holds nothing more nor less than that under the rule of Williams v. Haas, supra, and Curtis v. Schwartzman Packing Co., supra, the question of whether or not plaintiff's negligence under the facts of that case was a proximately contributing cause of her injury was for the jury, at least where there was a question as to defendant's truthfulness on the stand, and a question of last clear chance.

An examination of Williams v. Haas, supra, discloses the following language [52 N.M. 9, 189 P.2d 634]:

'Whether the plaintiff has been guilty of contributory negligence barring a recovery is nearly always a question for the jury under proper instructions by the court. It is rarely the case the facts are such that the court can say as a matter of law that plaintiff is himself such an offender against the rules of the road as to deny him recovery. Yet, on occasions it does thus appear and when it does, the court should not and will not hesitate so to declare. Gray v. Esslinger, 46 N.M. 421, 130 P.2d 24...