Seele v. Purcell.

• Decision Date: 22 March 1941
• Docket Number: No. 4582.,4582.
• Citation: 113 P.2d 320,45 N.M. 176
• Parties: SEELE et al.v.PURCELL.
• Court: New Mexico Supreme Court

45 N.M. 176

113 P.2d 320

SEELE et al.

v.PURCELL.

No. 4582.

Supreme Court of New Mexico.

March 22, 1941.Rehearing Denied May 23, 1941.

Appeal from District Court, Chaves County; James B. McGhee, Judge.

Action by George H. Seele and Mrs. George H. Seele against Jess Purcell for injuries sustained by Mrs. Seele in an automobile accident. From a judgment for defendant, plaintiffs appeal.

Affirmed.

The general issue or general denial puts in issue all material allegations of complaint, which plaintiff must prove to maintain his action, and under such issue defendant may show absence of negligence on his part, or that injury was result of unavoidable accident.

Lake J. Frazier, of Roswell, for appellants.

O. O. Askren, of Roswell, for appellee.

BICKLEY, Justice.

Plaintiffs (appellants) sued defendant (appellee), alleging that defendant injured Mrs. George H. Seele through the negligent and careless operation of his car, resulting in actual damages of $260 for expenses and $1,000 on account of pain, suffering and injuries. Plaintiffs also alleged that immediately following the accident, defendant promised to reimburse plaintiffs for expenses sustained as a result of medical treatment of Mrs. Seele and for her pain and suffering, but had refused so to do. Defendant answered, stating that the payments made to plaintiffs were voluntary donations, denying the allegations of the complaint, except that there had been a collision resulting in defendant's damage to plaintiffs' car, which defendant paid, and that the wife had sustained injuries. Defendant further alleged that something went wrong with his car mechanically which caused it to become completely out of control, and that within a few feet defendant was able to and did cause his car to stop, and that plaintiffs were guilty of contributory negligence. Plaintiffs replied, stating that the payments made and offered were in settlement of defendant's liability, and that the accident was the result of negligent driving by defendant without any contributory negligence on their part.

The case was tried by the judge, who made findings of fact which, so far as material to a consideration of the assignments of error, are substantially as follows: The plaintiffs were proceeding in an orderly and proper manner on the highway, when, without negligence on their part, their vehicle was struck by an automobile belonging to and operated by the defendant, on a concrete bridge near Roswell. The highway was paved for many miles on each side of the scene of the accident. Following the collision the defendant promised to pay for the damages to the plaintiffs' automobile and hospital bill, and Dr. Johnson's bill for medical services. Defendant did pay for repair bill on plaintiffs' car, but the medical bill as presented by plaintiffs included other charges which the defendant declined to pay, but offered to pay the bill of Dr. Johnson and the bill incurred at St. Mary's Hospital during the time Mrs. George H. Seele was confined therein, but the plaintiffs refused to accept the amount of said bill in settlement of the claim. Mrs. George H. Seele sustained injuries as a result of the accident.

The approach to the bridge where defendant entered is at the base of a small inclined curve. Immediately prior to the time the defendant entered said bridge, the shackle bolt on the right-hand spring of his car broke, so that the right fender dropped onto the right front tire, causing the defendant to lose control of his automobile, which thereupon smashed into the concrete abutment on the right side of the highway, and thereafter angled from the right-hand abutment of the bridge to the left-hand or east wall of the bridge on plaintiffs' side of the highway, and thereupon proceeded toward the plaintiffs for some fifteen or twenty feet, and then careened toward the right, whereupon it collided with plaintiffs' automobile. The plaintiffs turned their car from the path of the defendant's automobile in an effort to avoid a head-on collision. The defendant was driving his automobile along the highway at a reasonable and lawful rate of speed, and when the shackle bolt broke he applied his brakes for approximately ten or twelve feet before the collision with the concrete abutment, and at the time the shackle bolt broke, the brakes were in operating condition. After striking the right-hand abutment, the defendant's car angled to the left-hand side of the abutment, striking it at a point forty-five feet west of the north end of the east abutment, then proceeded fifteen feet west in approximately a straight line, and then made a sharp right-angle turn to where the defendant collided with the Seele car, a little to the left of the middle of said bridge. The defendant, acting in the emergency thus created, was applying the foot brake and trying to steer the car and did not apply the hand brake. (The failure of defendant to apply the hand brake is vigorously asserted by plaintiffs as being a negligent omission). At the point of impact, the force of the impact caused the two automobiles to bounce and part several feet, and after the impact with plaintiffs' automobile it was impossible to move defendant's car until the right-hand fender and spring had been lifted. The defect in the shackle bolt was latent; that is, it could only be determined by taking off the shackle and bolt and examination by a mechanic, and it could not be seen by ordinary inspection and was unknown to the defendant, and the breaking of this bolt was the proximate cause of the collision and the injury sustained by Mrs. Seele.

From the findings of fact, the court concluded that the defendant is not liable to the plaintiffs or either of them, and that the complaint should be dismissed. An appeal to this court was prayed and allowed. Appellant filed a praecipe for the record which called for the testimony of the three eye-witnesses, who were the plaintiffs and defendant, and also the police officer's report. Said praecipe included the following assignment of errors:

“1. The Court erred in finding and deciding that the accident involved in this case was unavoidable; that it was not caused by any negligence on the part of Defendant-Appellee, and that Defendant-Appellee was not liable to Plaintiffs-Appellants therefor.

“2. The Court erred in finding and deciding that the admissions and promises of payment made by Defendant-Appellee created no liability against him in favor of Plaintiffs-Appellants.”

These two assignments of error are now presented as points relied upon by appellants for reversal of the judgment.

[1][2][3][4][5] It is apparent that the court, in weighing the testimony, had in mind what is commonly called the emergency rule in negligence cases. As applicable to the operation of motor vehicles, the rule is thus stated in 42 C.J., Motor Vehicles, § 592:

“4. Acts in Emergencies. Where the operator of a motor vehicle is by a sudden emergency placed in a position of imminent peril to himself or to another, without sufficient time in which to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as is required of him under ordinary circumstances, and is not liable for injuries caused by his machine or precluded from recovering for injuries to himself or his machine if an accident occurs, even though a course of action other than that which he pursues might be more judicious, provided he exercises ordinary care in the stress of circumstances to avoid an accident.

“The sudden emergency doctrine is not an exception to the general rule requiring ordinary care in the operation of an automobile, but the emergency is one of the circumstances to be taken into consideration in determining whether the operator has exercised reasonable care, and the doctrine cannot be extended so as to justify the driver in disregarding the rights of others in the effort to save himself.

“Where the automobilist created the emergency, or brought about the perilous situation, through his own negligence, he cannot avoid liability for an injury on the ground that his acts were done in the stress of emergency.

“Where there was ample time and space to avoid an accident, the sudden emergency rule does not apply.

“Acts after emergency. The emergency rule applies only to an error of judgment with respect to the steps taken to avoid the danger suddenly thrust upon the driver, and cannot be successfully invoked to relieve him of the consequences of negligent management of his car after the emergency is past.”

This rule was applied in Vigil v. Atchison, T. & S. F. R. Co., 28 N.M. 581, 215 P. 971, 973. In that case we said: “The general rule of law is that a person who is placed in a position of peril is required to use all diligence to extricate himself therefrom, and that his failure so to do precludes a recovery. There is an exception to this general rule which the courts have recognized and declared, and that is that where a person is suddenly placed in a position of peril or serious danger, and he becomes so excited or frightened that he is unable to deliberate upon the safety of the comparative courses which are open to him, he is not required to act with that degree of prudence which would otherwise be obligatory, and, under those facts, a person is not necessarily chargeable with negligence for doing, or failing to do, that which would be required of him under ordinary circumstances. The appellee testified that he was greatly excited and badly...