Stehwein v. Olcott

• Court: New Mexico Supreme Court
• Writing for the Court: COMPTION; NOBLE, J., and SPIESS
• Citation: Stehwein v. Olcott, 428 P.2d 634, 78 N.M. 95, 1967 NMSC 137 (N.M. 1967)
• Decision Date: 12 June 1967
• Docket Number: No. 8293,8293
• Parties: Paul H. STEHWEIN, Father and Next Friend of Robert E. Stehwein, a Minor, and Paul H. Stehwein, Individually, Plaintiff-Appellant, v. George M. OLCOTT, Defendant-Appellee.

Page 634

428 P.2d 634

78 N.M. 95

Paul H. STEHWEIN, Father and Next Friend of Robert E Stehwein, a Minor, and Paul H. Stehwein Individually, Plaintiff-Appellant, v. George M. OLCOTT, Defendant-Appellee.

No. 8293.

Supreme Court of New Mexico.

June 12, 1967.

Matteucci, Gutierrez, Franchini & Calkins, Albuquerque, for appellant.

Toulouse, Ruud, Gallagher & Walters, J. E. Casados, Albuquerque, for appellee.

OPINION

COMPTION, Justice.

This action was brought by the plaintiff individually and as father and next friend of the minor, Robert E. Stehwein, for damages for personal injuries allegedly suffered by the son as a result of an automobile accident. The case was tried to a jury and from the judgment entered upon the verdict, the plaintiff appeals.

On the morning of December 30, 1964, the defendant, with his two sons and young daughter, drove to the Santa Fe Ski Basin. It was not snowing on that particular morning but the sky was overcast and there was snow on the ground from a snow the previous night. The road between Santa Fe and the ski basin, called Hude Park Road, is paved from Santa Fe to approximately halfway to the basin. The unpaved portion had been recently graded and was described as slippery, being covered with ice and snow. Fe and the ski basin, called Hyde Park ski basin and started back down the steep grade. His car was equipped with snow tires and chains on the rear wheels. He proceeded down the grade in low gear and was controlling his car by constantly pumping his brakes. He estimated his speed at from fifteen to twenty miles per hour. The traffic going up the hill was moderately heavy, but defendant met and proceeded past this traffic with no trouble.

Then at a point four or five miles down the mountain, defendant entered an S curve, as did young Stehwein, driving a car belonging to the father of a girl friend, his passenger that morning on their way to the basin. On the outer edge of defendant's lane there was a sharp drop-off down the mountain side, while a steep embankment bordered the edge of Stehwein's lane. Although the road remained wide enough at all times so that cars could pass, it narrowed in the area of the S curve. Upon sighting defendant's vehicle, Stehwein steered to the extreme right edge of his lane and slowed his speed. When defendant first saw Stehwein they were about 100 yards apart. For another 50 yards defendant proceeded as before, gently pumping his brakes. He then realized that the presence of the approching vehicle on the narrowed roadway required greater caution and he applied his brakes fully. When he did so his car skidded and, due to the slope of the road to the uphill lane, it slipped into the car being driven by Stehwein.

After the collision the two drivers pulled the left fenders of both vehicles away from the tires. Defendant then continued down the grade. Stehwein and his passenger proceeded on up the road until reaching a point wide enough to allow them to turn the car around. Then they, too, proceeded back down the grade and back to their homes in Albuquerque. That night Stehwein suffered pain in his stomach, side and ribs and began to vomit, following which he was taken to a hospital for treatment. The stomach condition and medical expenses are alleged to be the result of plaintiff's having been thrown against the steering wheel and the door of his car.

The jury was instructed on the questions of sudden emergency and unvoidable accident over the plaintiff's objections that the instructions were not warranted by the evidence. Plaintiff now claims reversible error in the giving of these instructions.

It appears that the defendant's car was well equipped for the road conditions. He had safely passed other cars traveling up the grade. It was not until the sudden appearance of the Stehwein driven vehicle on the narrowed S curve that he fully applied his brakes. In this situation the defendant was entitled to have his conduct viewed by the jury in the light of what a reasonably prudent person would do under like circumstances upon being confronted with unexpected peril. We think the instruction on sudden emergency was warranted by the evidence. See Gould v Brown Construction Company, 75 N.M. 113, 401 P.2d 100; Otero v. Physicians & Surgeons Ambulance Service, Inc., 65 N.M. 319, 336 P.2d 1070; and State ex rel. State Highway Commission v. Davis, 64 N.M. 399, 329 P.2d 422. See, also, ...