Smith v. Meadows

Decision Date07 April 1952
Docket NumberNo. 5444,5444
Citation56 N.M. 242,242 P.2d 1006,1952 NMSC 30
PartiesSMITH v. MEADOWS (GOMEZ, third-party defendant-appellee).
CourtNew Mexico Supreme Court

Simms, Modrall, Seymour & Simms, James E. Sperling, C. Vance Mauney, Albuquerque, for appellant.

Joseph L. Smith, Lorenzo A. Chavez and Dale B. Walker, Albuquerque, for appellee Smith.

T. B. Keleher, Albuquerque, for appellee Gomez.

COORS, Justice.

The plaintiff below, Smith, (an appellee here) was granted judgment in the sum of $12,500 against the defendant Meadows (appellant here) based upon a verdict of the jury in such amount on account of personal injuries, medical expenses, etc., suffered by defendant in a rear-end collision in the nighttime when the car owned and driven by the defendant, in which plaintiff was riding as a guest, collided with the car of third-party defendant (an appellee here) which was stopped at night on a portion of the traveled part of the public highway. The plaintiff did not sue the owner of the car which was parked or stopped on the public highway but the defendant, by permission of court, brought in such owner of the parked car, Robert Gomez, as a third-party defendant, alleging that he had negligently parked his car upon the highway at night, without lights and in violation of law, and that such negligent acts of the third-party defendant were the proximate cause of the collision and whatever injuries were suffered by plaintiff; and prayed that, in event plaintiff recovered judgment against defendant, defendant should have judgment against third-party defendant in a like sum. The third-party defendant filed his answer of denial and a counterclaim charging defendant with negligence in driving into his car on the highway and damaging it to the extent of $385.12 and asking judgment against Meadows for such sum. The jury returned a verdict in favor of third-party defendant Gomez on his counterclaim against the defendant Meadows for the sum of $250, although instructed by the court that the parties had stipulated that any verdict, if given in favor of third-party defendant, should be in the sum of $385.12. Third-party defendant (appellee here) moved the court for judgment non obstante veredicto for $385.12. The court granted such motion and entered judgment for said third-party defendant Gomez against defendant Meadows in the last said sum.

There was no evidence introduced to show, nor was there any contention made by plaintiff, that the accident was intentional on the part of the defendant Meadows. The material questions presented for determination in this case were, first, whether the accident in which the plaintiff was injured was caused by defendant's heedless or reckless disregard of the rights of others and, second, whether the actions of the third-party defendant in parking his car on the public highway at night was negligence and the proximate cause of the injury or a contributing proximate cause of the accident.

The cause of action filed by plaintiff as a guest against defendant, the owner and driver of the car in which plaintiff was riding, is not a cause of action for negligence but is one based upon what is known as the New Mexico guest statute, being Sec. 68-1001, N.M.S.A.1941, which reads as follows:

'No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.'

In order to recover, it is not enough for plaintiff, the guest, to prove that defendant was negligent and that his negligence was the proximate cause of the accident and injury, but he is required to prove that the proximate cause of the accident and injury was defendant's heedless and reckless disregard of the rights of others. As against the third-party defendant Gomez the plaintiff would only have had to prove negligence of Gomez as the proximate cause of the injury, but the plaintiff did not sue Gomez. On the third-party defendant's counterclaim against the defendant Meadows for the damage to his car, the counterclaimant Gomez would have been required only to show that defendant Meadows' ordinary negligence was the proximate cause of his damage but, if the third-party defendant was guilty of contributory negligence by stopping his car upon the highway at night without lights he would not have been entitled to a verdict or judgment.

The third assignment of error made by appellant is:

'3. That the trial court erred in failing and refusing to grant defendant's motion duly made within the requisite period of time as prescribed by law, to set aside verdict of the jury and enter judgment notwithstanding the verdict.'

When a verdict or judgment is attacked, as in the present case, it is our duty to determine whether there is substantial evidence, contradicted or uncontradicted, to support it, and all conflicts must be resolved in favor of the appellee and all reasonable inferences indulged in the support of the verdict and judgment. There is small conflict in the evidence on material questions, except on the speed at which the defendant was driving his car and on the question of how far over on the traveled portion of the highway the car of the third-party defendant was stopped. Bearing in mind the rule above stated, we review the evidence in the case.

Plaintiff and defendant were residents of Los Alamos, New Mexico, where defendant was employed as a bartender at the Civic Club in said city and the plaintiff was a metal worker and also played in the orchestra weekly on Saturday nights for dances at said Civic Club. They had been acquainted for about ten months and saw each other once or twice a week and on several occasions had gone out socially together. Prior to the day of the accident both had ridden with each other in each other's car and upon one occasion defendant had allowed plaintiff to drive defendant's car from Los Alamos to Espanola.

On May 28, 1950, the Civic Club gave a picnic at Bandelier National Monument, in a canyon about 14 miles from Los Alamos. The defendant took the plaintiff and two girls in his car from Los Alamos to the picnic about noon of that day. The Club furnished free lunch and beer to the guests of the picnic and both plaintiff and defendant had lunch and drank beer at some time while they were there. Plaintiff had two or three beers and the defendant had several but not in excess of six. Plaintiff, defendant and the two girls left the picnic about 4:00 p. m. or thereafter, returning to Los Alamos, where the girls were taken home. Plaintiff and defendant went first to one dormitory and then to the other, where each lived, to change their clothes. At that time plaintiff took a drink of whiskey but defendant had no alcoholic drinks of any kind after he had left the picnic in the afternoon. During the afternoon plaintiff and defendant had talked of driving to Ragle's Airport south of Santa Fe to get a plane and fly to Denver, Colorado, or to Jaurez, Mexico.

Plaintiff and defendant, in defendant's car with defendant driving, left Los Alamos and drove to Ragle's Airport, several miles south of Santa Fe, arriving there at about 6:00 in the evening. They went into the airport restaurant and ate sandwiches and drank coffee and then defendant left plaintiff in the restaurant and went out to the airfield. Upon inquiry he found that he could not rent a plane, that none was available at that time for rental purposes. He decided to take a flying lesson from the instructor, Mr. Erickson. The defendant had theretofore taken numerous lessons and had a private pilot's license. His flying lessons were taken under his G. I. rights and he was continuing his instruction for the purpose of securing a commercial pilot's license. He made a flight under the supervision of said instructor for a period of half an hour. His instructor, who had given him many lessons previously, noticed no signs of intoxication and smelled no liquor upon the defendant; if he had, he would not have allowed him to take the lesson. After the flying lesson the defendant came back into the restaurant and joined the plaintiff, advising him that they were unable to get a plane for the trip they had contemplated and the defendant seemed to the plaintiff somewhat excited and more talkative than usual, talking about his flight that he had just made and about driving to Juarez.

They immediately decided to drive to Juarez and got into defendant's car. Plaintiff asked if he could drive and defendant said no, that he wanted to find another road to get over to Highway 85. On their trip south over Highway 85 defendant drove at a high speed. Plaintiff looked at the speedometer twice between the time they left the airport and the time of the collision two miles south of Bernalillo. At one time it registered between 60 and 65 miles an hour and the other time it registered 70 miles an hour. Plaintiff testified that although he did not look at the speedometer but twice, he felt at times that they were traveling faster than at the times he had glanced at the speedometer. During the 40 or 45 mile drive between the airport and the place of the accident the defendant never drove the car off the pavement of the highway, but did pass three or four cars going in the same direction by pulling out to the left and going around them without sounding his horn. At one time plaintiff asked defendant if he was tired and defendant said 'No'.

The road was straight and had been for about one and one-half miles prior to the accident; there was no ice, snow or water on the road and the night was clear. The road was very familiar to defendant as he had lived in Albuquerque many years and had driven the road repeatedly between Albuquerque and Bernalillo. The...

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    ...A. 136; De Blassie v. McCrory, 1956, 60 N.M. 490, 292 P.2d 786; Fowler v. Franklin, 1954, 58 N.M. 254, 270 P.2d 389; Smith v. Meadows, 1952, 56 N.M. 242, 242 P.2d 1006. In Menzie v. Kalmonowitz, 1927, 107 Conn. 197, 139 A. 698, 699, it was said that 'Wanton misconduct is more than negligenc......
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