SCHOEN v. SCHROEDER, 5111

• Decision Date: 06 January 1949
• Docket Number: No. 5111,5111
• Citation: 53 N.M. 1,200 P.2d 1021
• Parties: SCHOEN v. SCHROEDER.
• Court: New Mexico Supreme Court

53 N.M. 1

200 P.2d 1021

SCHOEN

v.SCHROEDER.

No. 5111.

Supreme Court of New Mexico.

Nov. 8, 1948.

Rehearing Denied Jan. 6, 1949.

[200 P.2d 1021, 53 N.M. 1]

Rodey, Dickason & Sloan and Frank M. Mims, all of Albuquerque, for appellant.

Hugh R. Horne, of Albuquerque, for appellee.

McGHEE, Justice.

Automobiles being driven by the parties to this action collided at the northwest corner of the intersection of South Hermosa Street and Ventura Avenue in the City of Albuquerque, for which the plaintiff-appellee was awarded damages in the sum of $180. We will refer to the parties as they appeared in the trial court.

The defendant denied negligence on his part, pleaded contributory negligence on the part of the plaintiff and counterclaimed for damage to his car.

Hermosa Street runs north and south and Ventura Avenue runs east and west. Hermosa Street is 36 feet wide at the intersection and is paved. Ventura Avenue is 32 feet wide and is unpaved.

The case was tried to the court without a jury and the following findings of fact and conclusions of law were made:

'Findings of Fact.

'I. That the plaintiff, Albert F. Schoen, on April 3, 1947, was driving his 1941 Studebacker Coach automobile in a westerly direction along Ventura Avenue, Albuquerque, New Mexico, and while so doing entered the intersection of said Ventura Avenue and South Hermosa Avenue, and had driven said vehicle into and past the center of said intersection when the defendant, Louis J. Schroeder, drove defendant's vehicle against the right door of plaintiff's car, said door being located at approximately the center of said right side. After the plaintiff's car was in the west side of the intersection defendant's car struck the plaintiff's car about in the middle of plaintiff's car, on the right hand side. The collision occurred on the north side of Ventura Avenue and on the west side of Hermosa Avenue, when the front end of plaintiff's car was within two to four feet of the west side of Hermosa Avenue and the intersection.

'II. That defendant failed to use reasonable diligence in stopping at the intersection so as to allow plaintiff to finish his crossing, which he was well into before the defendant entered the intersection, and defendant negligently failed to turn his car a few feet to the left so as to avoid the collision with plaintiff's car.

'III. That at said time the defendant was operating the defendant's vehicle in a southerly direction on South Hermosa Avenue, Albuquerque, New Mexico, entered the intersection of said South Hermosa Avenue and Ventura Avenue after the plaintiff had entered said intersection and drove his vehicle into plaintiff's vehicle as stated in the next preceding finding.

'IV. That the defendant, Schroeder, prior to driving his vehicle into the right door of plaintiff's vehicle had not maintained a proper lookout so that he could have seen the plaintiff enter the intersection of Ventura Avenue and South Hermosa prior to defendant entering the same.

'V. That the defendant Schroeder at the time he approached the intersection of Ventura Avenue and South Hermosa Avenue failed to have his vehicle under such control that he could stop his vehicle before hitting plaintiff's vehicle or to otherwise avoid a collision with plaintiff's vehicle.

'VI. That the defendant at the time he approached the intersection of Ventura Avenue and South Hermosa Avenue was operating his vehicle at such a speed that he was unable to stop said vehicle before colliding with plaintiff's vehicle.

'VII. That the plaintiff suffered damages in the amount of $180.00.

'Conclusions of Law.

'I. That the plaintiff was operating his vehicle in a prudent and careful manner free of any negligence.

'II. That plaintiff, because of entering the intersection prior to defendant, had the right-of-way at the time and place alleged in the complaint.

'III. That defendant was guilty of negligence in the premises in the following respects:

'(a) He failed to yield to plaintiff the right-of-way at the intersection.

'(b) He failed to maintain a proper lookout at the time he entered the intersection.

'(c) He failed to have his vehicle under proper control.

'(d) He operated said vehicle at an excessive rate of speed.

'IV. That the plaintiff should have judgment against the defendant in the amount of $180.00 and the costs of this action, and the defendant is entitled to recover nothing upon his counterclaim.

'To all of which both the plaintiff and defendant except.'

The defendant admits that there is substantial evidence to sustain the finding that he was negligent, but strenuously urges that the evidence shows that the plaintiff was guilty of contributory negligence so as to bar a...