Silva v. Waldie.

• Decision Date: 02 August 1938
• Docket Number: No. 4306.,4306.
• Citation: 82 P.2d 282,42 N.M. 514
• Parties: SILVA et al.v.WALDIE.
• Court: New Mexico Supreme Court

42 N.M. 514

82 P.2d 282

SILVA et al.

v.WALDIE.

No. 4306.

Supreme Court of New Mexico.

Aug. 2, 1938.Rehearing Denied Sept. 16, 1938.

Appeal from District Court, Socorro County; George W. Hay, Judge.

Action by Juan Silva and another against George Waldie for injuries sustained in an automobile collision. From a judgment entered on a directed verdict for defendant, plaintiffs appeal.

Reversed and remanded, with instructions.

Evidence that plaintiffs were invited to ride in motorist's automobile, and lack of evidence of a common enterprise or that plaintiffs had authority over operation of automobile, authorized jury to find that plaintiffs were “guests,” as respects whether motorist's negligence, if any, was imputable to plaintiffs, and fact that one guest voluntarily furnished some gasoline and oil did not alone constitute trip a “joint enterprise,” nor did fact that one guest wiped windshield at motorist's request change his status.

John F. Simms and Donald M. Bushnell, both of Albuquerque, for appellants.

W. A. Keleher and A. H. McLeod, both of Albuquerque, for appellee.

PER CURIAM.

The original opinion in this cause was withdrawn upon consideration of a motion for rehearing; and the following is substituted therefor:

BRICE, Justice.

This suit was brought to recover damages for alleged personal injuries resulting from a collision of automobiles. At the conclusion of appellants' (hereafter called plaintiffs) testimony, upon motion of appellee (hereafter called defendant), the court instructed the jury to return a verdict for him. Defendant's motion called for a declaration of law, viz.: Considering only the testimony introduced by plaintiffs, together with all reasonable inferences that could be deduced therefrom, in a light most favorable to them, had they made a case that would support a judgment?

The facts so considered are substantially as follows:

The plaintiffs were invited by Jose Apodaca and wife, on December 15, 1934, to go in their Ford car with them from Socorro to Albuquerque. Though not requested to do so, Silva bought the gas and oil for the trip. They left Socorro at 4 a. m. of December 16th, Apodaca driving, with his wife sitting by him holding their year old child. The plaintiffs, together with a niece and her child, sat on the back seat. Before passing through the village of Abeyta they ran into a fog, so dense that they could not see the houses on either side of the road, or even the road itself. The windshield wiper was not working, and Silva, at the request of Apodaca, got out and wiped the moisture from the windshield several times. At the last stop for this purpose, Silva, at Apodaca's request, walked to the left side of the road to see if the car was properly on the road and informed Apodaca that it was. After this observation Silva got into the car, and just as he sat down he saw a light coming from the direction of Albuquerque, which had also been seen by Apodaca; who had just started his car when the oncoming automobile (a Dodge) struck the Ford head-on, completely demolishing it. It was only two or three seconds from the time the light was seen until the collision occurred. The force of the collision bent the frame of the Ford, twisted its axle into the shape of a figure eight, crumpled the left front fender, and loosened the engine from its mountings and otherwise broke up the car. Mrs. Apodaca and her baby were killed and the other occupants of the car seriously injured. The two cars were so wedged together that they could be pulled apart only by jacking them up. The left wheels of the Ford car were slightly over the center of the road, at the time of the collision. The Dodge car was further over to its left of the center than the Ford. The road was flat and straight for a long distance in both directions. Other facts will be stated in the opinion.

The first questions are: (1) Whether as a matter of law the plaintiffs were negligent; and, if so, (2) was such negligence, as a matter of law, one of the proximate causes of their injury?

[1][2][3] In Maestas v. Alameda Cattle Co., 36 N.M. 323, 14 P.2d 733, 735, we quoted approvingly from the early case of Lutz v. Atlantic & Pacific R. Co., 6 N.M. 496, 30 P. 912, 16 L.R.A. 819, a definition of “proximate cause” as that “cause which, in natural and continued sequence, unbroken by any efficient, intervening cause, produced the result complained of, and without which that result would not have occurred.” Also see Gilbert v. New Mexico Construction Co., 39 N.M. 216, 44 P.2d 489. To contribute proximately to the injury plaintiffs' negligence must have contributed substantially. In sections 463 and 465 of the Restatement of the Law of Torts, the correct rules are aptly and succinctly stated, as follows:

Sec. 463. “Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, co-operating with the negligence of the defendant in bringing about the plaintiff's harm.”

Sec. 465. “‘The plaintiff's negligent exposure of himself to danger or his failure to exercise reasonable care for his own protection is a legally contributing cause of his harm, if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility because of the manner in which his conduct contributed to his harm.”’ (Our italics.)

[4] The statutes of New Mexico prohibit the driving of an automobile on a highway in this state without two headlights. Comp.St.1929, § 11-847. It was therefore negligence per se (as we have held in a number of cases) for Apodaca to drive his car with only one headlight. The plaintiffs testified that they had no knowledge of the fact that the car had but one headlight. But assuming for the purposes of this case that the negligence of Apodaca was chargeable to plaintiffs, there was no evidence in the record to prove that this negligence contributed in any degree to plaintiffs' injuries. Nor does defendant so charge in his motion.

[5] The fact (as stated in defendant's motion for an instructed verdict) “that it affirmatively appears that the collision took place shortly after one of the plaintiffs, Juan Silva, had stepped down from cleaning the windshield, the wiper of which had been broken prior to the beginning of the journey and was not in use at the time and place material to this case,” if true, does not, as a matter of law, establish negligence on the part of Apodaca; nor does it establish that the lack of the windshield wiper was, as a matter of law, a procuring cause of plaintiffs' injuries; nor is there any charge in the motion that it was such cause.

[6] In view of a new trial it should be stated that there is evidence which shows that Apodaca knew nothing of the condition of the windshield wiper before driving into the fog; that it was functioning the last time he had occasion to use it; that he attempted to use it on this occasion, but it failed to work, and this was the first time it had so failed. This, if true, disproves negligence in that regard.

This disposes of all the questions raised in the motion for an instructed verdict. Other points are argued in the briefs of the parties, and are considered here in view of a new trial.

[7] One of the contentions is that as Apodaca admittedly was driving the car in which plaintiffs were injured partially over the center of the road, in a dense fog, in violation of a statute, that therefore the plaintiffs were guilty of negligence per se.

Section 11-810, N.M.Sts.1929, is as follows: “In crossing an intersection of highways or the intersection of a highway by a railroad right of way, or at any point where the driver's view along the highway is not unobstructed for a distance of 500 feet, the driver of a vehicle shall at all times cause such vehicle to travel on the right half of the highway unless such right half of the highway is obstructed or impassable.”

Plaintiffs contend that this statute has reference to stationary physical obstructions along the highway and not the obscuring of the vision by atmospheric conditions.

One of the definitions of “obstruct,” taken from Webster's New International Dictionary, is, “to be or come in the way of *** as, the bar in the harbor obstructs the passage of ships; clouds obstruct the light of the sun; to cut off the sight of (an object), as, the trees obstruct the distant hills.”

The statute has reference to the obstruction of the vision by atmospheric conditions, such as fog, snow, rain, or dust, as it does to stationary objects.

It was therefore negligence per se for Apodaca to knowingly drive on the left half of the highway in a dense fog.

But whether such negligence is chargeable to plaintiffs depends upon a number of other questions, among which is whether the plaintiffs were guests of Apodaca, and if guests whether they used ordinary care under the circumstances to protect themselves against injury. And if negligent, such negligence was a proximate cause of their injury-all questions for the jury to decide.

The defendant was further to his left side of the road than Apodaca was to his left side; though if either had been traveling entirely on the right side of the road, but close to the center line, the collision would have occurred regardless of that fact.

The district court had no opportunity to pass upon the questions of whether Apodaca was negligent as a matter of law in stopping his car near the center of the road to clean the windshield; and if so, whether as a matter of law such negligence contributed substantially to plaintiffs' injuries, and therefore chargeable to them. These questions, in view of a new trial, will be decided.

The status of plaintiffs must first be determined. They claimed to be guests of Apodaca, and chargeable only with their own negligence.

[8] If two or more persons unite in a joint prosecution of a common purpose,...