Sivage v. Linthicum
| Decision Date | 25 July 1966 |
| Docket Number | No. 7903,7903 |
| Parties | Vicia SIVAGE, Plaintiff-Appellant, v. Viola SIVAGE, Plaintiff-Appellant, |
| Court | New Mexico Supreme Court |
WALDO SPIESS, Judge, Court of Appeals.
This action arose out of an automobile collision which occurred within the intersection of certain streets in the city of Portales. From a judgment following a verdict for defendant (appellee), plaintiff (appellant) has appealed.
The parties have stipulated upon and the court has approved a statement of facts, the substance of which is as follows:
Plaintiff was driving an automobile in a northerly direction on South Main Street and at the time defendant was driving in a westerly direction on East Seventeenth Street. A collision between the vehicles operated by the parties occurred within the intersection of the named streets.
In accordance with plaintiff's testimony she was driving at a speed of less than 25 miles per hour and did not see defendant's automobile until an instant prior to the collision. Defendant testified that he entered the intersection at a speed of approximately 5 miles per hour and did not see plaintiff's vehicle until an instant prior to the collision.
The collision occurred in the half of the intersection lying north of the center line of East Seventeenth Street. There was a conflict in the testimony as to whether the collision was in the northeast or northwest quadrant of the intersection. There were no control lights nor signs at the intersection.
It is certain from the agreed statement of facts that plaintiff and defendant approached the intersection at approximately the same time, plaintiff being on defendant's left.
The sole ground for reversal is that the trial court erred in giving instruction No. 10 and refused to give a particular instruction requested by plaintiff. Instruction No. 10 to which plaintiff has objected is as follows:
The requested instruction, which was refused, is as follows:
'The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different street.'
Our review of appellant's objection to the giving of instruction No. 10 requires a consideration of the following statute.
Section 64--18--27, (a) and (b), N.M.S.A., 1953:
'Vehicle approaching or entering intersection.--(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.
'(b) When two (2) vehicles enter an intersection from different highways at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.'
It is noticed that appellant's requested instruction is identical in language with Section (a) except in the use of the term 'street' instead of 'highway'.
Plaintiff's objection to instruction No. 10 is upon the ground that it imposes a duty upon the driver from the left not warranted by the statute, in consequence changes the import of Section 64--18--27(a).
The instruction No. 10 correctly nterprets the quoted statute and in view of the statement of facts was properly given to the jury.
In the case of Moore v. Kujath, 225 Minn. 107, 29 N.W.2d 883, 175 A.L.R. 1007, an intersection accident was involved. Plaintiff approached the intersection from the north and defendant from the east. In defense it was claimed that defendant had entered the intersection first. The court concluded, in substance, that the vehicles had entered at approximately the same time stating that if defendant had entered the intersection first it was only by one or two seconds.
After quoting the Minnesota intersection right-of-way statute, which is the same as our statute above-quoted, the court said:
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