Stambaugh v. Hayes

• Decision Date: 12 June 1940
• Docket Number: No. 4517.,4517.
• Citation: 44 N.M. 443,103 P.2d 640
• Parties: STAMBAUGHv.HAYES et al.
• Court: New Mexico Supreme Court

44 N.M. 443

103 P.2d 640

STAMBAUGH

v.HAYES et al.

No. 4517.

Supreme Court of New Mexico.

June 12, 1940.

Appeal from District Court, Bernalillo County; Bryan G. Johnson, Judge.

Action by Mrs. Ruth L. Stambaugh, as administratrix of the estate of Charles Monroe Stambaugh, deceased, against Charles E. Hayes and the American National Life Insurance Company of Galveston, Tex., to recover damages for the death of plaintiff's intestate. Judgment for plaintiff, and defendants appeal.

Reversed and cause dismissed as to defendant insurance company, and affirmed as to defendant Hayes.

The trial court did not err in polling jury regarding their answers to special interrogatories and permitting them at their request to retire and correct mistakenly written affirmative answer to interrogatory which they had agreed to answer in negative.

Merritt W. Oldaker, Melvin D. Rueckhaus, M. Ralph Brown, and I. F. Gallegos, all of Albuquerque, for appellants.

Dudley Cornell and Hugh B. Woodward, both of Albuquerque, for appellee.

BRICE, Justice.

This is an appeal from a judgment in favor of the appellee (plaintiff) and against the appellants (defendants) for damages because of the alleged negligent killing of plaintiff's intestate. The appellant Hayes will be styled defendant and the appellant Insurance Company will be styled Insurance Company in this opinion.

Plaintiff's intestate, while riding a bicycle at an intersection of two streets in the city of Albuquerque, was struck and killed by an automobile driven by the defendant. The defendant, it is alleged by plaintiff, was an employee of the Insurance Company, and at the time of the accident was acting in the course of his employment, whereby the Insurance Company became liable for the death of the child under the rule respondeat superior.

We find from a careful reading of the record that there is substantial evidence to support the charge that defendant was negligent in the operation of his automobile and that such negligence was the proximate cause of the death of plaintiff's intestate.

The jury was warranted, under the facts of the case, in finding that no negligence of plaintiff's intestate was a contributing cause of his death.

[1] It was not error for the trial court to poll the jury regarding their answers to special interrogatories; and to permit them, at their request, to retire and correct an answer to one which through mistake, had been written “yes,” when the answer to which they had agreed was “No.” Bell v. Hutchings, 86 Ga. 562, 12 S.E. 974; Bino et al. v. Veenhuizen et ux., 141 Wash. 18, 250 P. 450, 49 A.L.R. 1297 and anno. at page 1301; 64 C.J. “Trial” Secs. 864 and 866.

After pleading negligence generally the plaintiff pleaded eight specific acts of negligence on the part of defendant, one of which was, “The defendant negligently and carelessly failed to sound a horn or give other warning in approaching said intersection;” and another was “*** the defendant wholly failed to stop or appreciably to diminish his speed at said intersection and before colliding with decedent.”

[2][3][4] The defendant requested the court to instruct the jury as follows: “You are instructed that the defendant, Charles E. Hayes, was under no legal duty to sound his horn, to stop his car, or to diminish his speed below the lawful rate of speed at the intersection of 6th and Marquette at the time of the accident, unless there was conflicting traffic which an ordinary prudent man would have seen.”

While each party to a jury trial is entitled to an instruction on the law applicable to his theory of the facts (Southern Pacific Co. v. Stephens, 36 N.M. 10, 6 P.2d 934), this assignment is argued as an abstract proposition of law, without reference to the facts of the case, unless we are to assume that defendant did in fact fail to sound his horn, stop or diminish his speed. But whether he did or not, the requested instruction is faulty, in limiting the precautions mentioned to cases where “there was conflicting traffic which an ordinarily prudent man would have seen.” The rule is that the defendant was required to exercise that degree of care which an ordinarily prudent person would have exercised under the situation and circumstances then existing, without regard to conflicting traffic which would or could have been seen by him. Sometimes traffic is concealed by obstructions and cannot be seen; but this does not excuse the driver from taking such precautions as the exigencies of the situation require, measured by the rule mentioned.

[5][6] The trial court refused to give defendant's requested instruction, as follows: “In this case the defendant Charles E. Hayes claims that the bicycle ridden by the Stambaugh boy was hidden by the pick-up truck driven by Mr. Stagner. If you find that this is correct then you are instructed that there was no legal duty on the defendant Hayes to anticipate or expect that there was a bicycle on the other side of the truck.”

Defendant cites Klink v. Bany et al., 207 Iowa 1241, 224 N.W. 540, 65 A.L.R. 187 and anno. at page 192, to the effect that a driver of a motor vehicle is not legally bound to anticipate or know the intention or purpose of a person who, being in a zone of safety, suddenly and without warning enters a zone of danger and is struck by such vehicle. The case of Haire v. Brooks, 42 N.M. 634, 83 P.2d 980, illustrates the rule. But we have no such case here. The deceased was travelling in the street; and though he may have been hidden by a vehicle from defendant's view, it does not follow as a matter of law that defendant owed deceased no duty, or was not liable for the result of his own negligence, as the language of the requested instruction seems to indicate. A driver of an automobile on a busy city street must anticipate that bicycles may follow automobiles, as the latter may follow large trucks and thus be hidden from view.

[7][8] The trial court did not err in refusing to give to the jury the following instruction requested by plaintiff: “If you find from the evidence that the death of Charles Monroe Stambaugh resulted from an unavoidable accident, then your verdict should be for the defendants in this case.”

“Unavoidable accident” has a definite legal meaning. It is an accident which is not occasioned in any degree, either directly or remotely, by want of such care or prudence as the law holds every man bound to exercise; and if the accident complained of could have been prevented by either party by means suggested by common prudence, it is not unavoidable. Orange & N. W. Ry. Co. v. Harris, 127 Tex. 13, 89 S.W.2d 973; St. Louis, etc., Ry. Co. v. Bryan, 195 Ark. 350, 112 S.W.2d 641; Murphy v. Read, 157 Or. 487, 72 P.2d 935; Harrison v. Smith, 167 Md. 1, 172 A. 273; San Pedro etc., Co. v. United States, 9 Cir., 220 F. 737.

The requested instruction containing the legal phrase “unavoidable accident,” is not sufficiently definite to apprise the jury of its import, and unless followed by a definition it is misleading and should not be given. Godfrey v. Kansas City Light & Power Co. 213 Mo.App. 139, 247 S.W. 451. Also, it should have been followed by its application on assumed state of facts supported by substantial evidence from which, if believed, the jury would have been authorized to find that the death of the child was caused by an unavoidable accident. Bailey v. Woodrum Truck Lines, Tex.Civ.App., 36 S.W.2d 1090.

[9] Each of the parties pleaded affirmatively that the accident was caused by the negligence of the other and neither pleaded that it was caused by an unavoidable accident, as that phrase is legally defined. In such case it was not error to refuse to instruct on that issue, Southland Greyhound Lines et al. v. Dennison, Tex.Civ.App., 62 S.W.2d 500; Avra v. Karshner et al., 32 Ohio App. 492, 168 N.E. 237, though there is authority to the contrary, O'Connell v. Home Oil Co. et al., 180 Wash. 461, 40 P.2d 991.

It has been held that under the defendant's plea of general denial, he is entitled to an instruction on unavoidable accident if warranted by the evidence (Galveston, etc., Co. v. Washington et al., 94 Tex. 510, 63 S.W. 534; Suttle v. Texas Elec. Co., Tex. Civ.App., 272 S.W. 256; Colorado & S. Ry. Co. v. Rowe, Tex.Com.App., 238 S.W. 908), but that is not the state of the pleadings here.

The judgment against defendant should be affirmed.

The Insurance Company filed a separate brief, in which certain questions not heretofore considered are presented.

At the close of plaintiff's case the Insurance Company moved for a directed verdict in its favor, which motion was sustained by the court, and the jury was accordingly instructed to, and did, return such verdict. Thereafter, the defendant Hayes introduced his testimony, after which the plaintiff moved to set aside the directed verdict in favor of the Insurance Company and that she be permitted to supplement her testimony with that of another witness. Over the objection of the Insurance Company the verdict of the jury was set aside and other evidence introduced by the plaintiff. At the close of plaintiff's testimony the Insurance Company renewed its motion for a directed verdict, which motion was overruled by the court. Thereupon the Insurance Company elected to stand on its motion for a directed verdict, and refused to submit any testimony or to otherwise take part in the proceedings that followed.

The Insurance Company raises a number of questions, but all are disposed of by the answers to two: Was the defendant a servant of the Insurance Company? If so, was he at the time of the accident acting in the course of his employment, so that the Insurance Company became liable for the death of the child under the rule respondeat superior?

[10] By moving for an instructed verdict the Insurance Company rested its case on a question of law; that is, taking as true all testimony favorable to plaintiff, and only such other (if any) which, under the rules of law the jury...