Southern Pac. Co. v. Stephens

• Citation: 6 P.2d 934,36 N.M. 10,1931 -NMSC- 066
• Decision Date: 26 December 1931
• Docket Number: 5597.
• Parties: SOUTHERN PAC. CO. v. STEPHENS.
• Court: Supreme Court of New Mexico

6 P.2d 934

36 N.M. 10, 1931 -NMSC- 066

SOUTHERN PAC. CO. v. STEPHENS.

No. 5597.

Supreme Court of New Mexico

December 26, 1931

Syllabus by the Court.

1. The party to a lawsuit has a right to have his theories as to what the facts show submitted to the jury under proper instructions, and a refusal to give such an instruction by the district court is reversible error.

Appeal from District Court, Otero County; Frenger, Judge.

Action by John C. Stephens against the Southern Pacific Company. Judgment for the plaintiff, and the defendant appeals.

Reversed and cause remanded, with directions to grant a new trial.

E. R Wright, of Santa Fé, Geo. A. Shipley, of Alamogordo, and Del W. Harrington, of El Paso, Tex., for appellant.

J Benson Newell, of Las Cruces, for appellee.

PARKER J.

This is an action for damages by appellee against the appellant for the demolition of his automobile and personal injuries to himself caused, allegedly, by a freight train being operated by appellant over its line, and over a road crossing about one mile west of Alamogordo in Otero county. The jury returned a verdict for the appellee, and the cause is here upon appeal.

Appellant was driving his automobile west from Alamogordo on the Alamogordo-El Paso road at about five o'clock in the morning. At about one mile west of Alamogordo the road makes a right-angle turn and thereupon approaches the road crossing for a distance of about 600 feet. Appellee alleged that his automobile was struck and wrecked by a locomotive hauling a freight train over said crossing and running without headlight and without sounding the steam whistle or bell, as required by law. Appellant, upon the other hand, offered evidence to show that the locomotive hauling the said train together with at least forty-three cars in said train, had already passed the said crossing, and that the appellant negligently and carelessly drove his automobile into said moving freight train and was thereby injured. The appellant requested of the court the following instruction, which was refused:

"You are instructed that it is the duty of the driver of an automobile to keep such vehicle under such control upon approaching a railroad crossing, that he may stop it within the distance necessary to avoid collision with any train thereon; and if you find from a preponderance of the evidence in this case that the plaintiff in approaching the crossing in question failed

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