Stewart v. Barnes
| Citation | 80 N.M. 102,451 P.2d 1006,1969 NMCA 15 |
| Decision Date | 28 February 1969 |
| Docket Number | No. 218,218 |
| Parties | Anne I. STEWART, Plaintiff-Appellee, v. Charles H. BARNES and State Farm Mutual Automobile Insurance Co., Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
Plaintiff was injured when the car in which she was a passenger was struck in the rear by an automobile operated by the defendant. The issues were tried to the court without a jury and judgment was rendered in favor of plaintiff. By appeal defendant has challenged the sufficiency of the evidence to support the findings of negligence as to him. He has likewise asserted that the trial court erred in not finding, as he had requested, that the plaintiff assumed the risk of injury or was guilty of contributory negligence.
It is fundamental that if there is substantial evidence in the record to support a finding we are bound thereby. It is also fundamental that in deciding whether a finding has substantial support we must view the evidence in the most favorable light to support the finding and we will reverse only if convinced that the findings thus viewed, together with all reasonable inferences to be drawn therefrom, cannot be sustained by the evidence. Further, only that evidence and the inferences to be drawn therefrom which support the findings will be considered, and any evidence unfavorable to the findings will not be considered. Lopez v. Schultz & Lindsay Construction Company, 79 N.M. 485, 444 P.2d 996 (Ct.App.1968); Taylor v. McBee, 78 N.M. 503, 433 P.2d 88 (Ct.App.1967).
It appears from the record that the accident occurred about 11:00 o'clock A.M. on a clear, sunny day, in the right traffic lane of a two-lane highway which accommodates only southbound traffic. The traffic at the time, with the exception of sporadic spurts, was light. Mrs. Romero, the driver of the vehicle, was proceeding in a southerly direction. She had four passengers, including plaintiff. Upon reaching the area of the San Mateo exit ramp the engine of the car failed to function, forcing the vehicle to a stop in the right-hand traffic lane south of the exit ramp. At this point the car was located about three or four feet to the right of the white line dividing the two south bound lanes.
The Romero car remained where it had stopped upon the highway for approximately ten minutes prior to the collision, the passengers remaining inside the vehicle while Mrs. Romero undertook to start the engine. During the period which elapsed a number of cars utilized the left-hand traffic lane and passed the Romero car.
As the defendant approached the place of collision he was occupying the right-hand traffic lane. Upon reaching the area of the San Mateo exit ramp he passed a car which was turning off the highway on the exit lane and thereafter collided with the Romero car, injuring the plaintiff.
The trial court found defendant negligent in several respects, among which was a finding that defendant had failed to keep a proper lookout. It is principally upon the question of proper lookout that defendant challenges the findings. He contends that he was not guilty of negligence and the finding lacks support in that it is established by the record that there were certain obstructions which prevented his seeing the Romero vehicle in time to avoid the collision. The obstructions he says consisted of a general uprise in the highway beginning some three-fourths of a mile north of the exit ramp and also the car which he was following and which eventualy veered into the exist lane prevented his seeing the Romero car. The record, in our opinion, supports the contrary conclusion.
It appears from the testimony that the highway upon which defendant was traveling as he approached the point of the collision is a 'straight, level roadway,' and a vehicle in the area of the collision would be clearly visible for at least four-tenths of a mile to one approaching from the north (the direction in which the defendant was traveling).
With respect to defendant's view of the Romero car prior to the collision he gave the following testimony:
'Q. And, you had a perfect view to the south of you as you approached the San Mateo exit, did you not?
A. Yes, I guess.
Q. And, there were no obstructions to vision were there?
A. No. Not until I got past the bridge, then I had a car in front of me.
Q. And, what car was that, the car that you struck?
A. Yes.'
The officer who had investigated the accident testified in substance that from a point three-fourths of a mile north of the San Mateo exit there is a gradual uprise in the road. He said:
The further contention that defendant's vision was impaired by the fact that he was following a vehicle which eventually veered onto the exit lane likewise does not appear to us to be sustainable. One of the persons in the exiting vehicle testified that defendant, upon passing their car, pulled into or partially in the traffic lane next to the median (which is the lane to the left of the one occupied by the Romero car). Defendant then turned to the right and into the right lane where the collision occurred.
Defendant seeks support for his position from Gutierrez v. Koury, 57 N.M. 741 263 P.2d 557 (1953); and Horrocks v. Rounds, 70 N.M. 73, 370 P.2d 799 (1962). These cases in our opinion do not support defendant's position. The circumstances in Gutierrez are substantially different from those present here. Horrocks, to our mind, would tend to support plaintiff's position.
In our opinion the finding that defendant was negligent in failing to keep a proper lookout has substantial support in the record.
Defendant further contends, as we have stated, that the trial court erred in not sustaining the defense of voluntary...
To continue reading
Request your trial
-
Williamson v. Smith
...attempted to distinguish the two. See, e.g., Stephens v. Dulaney, supra; Dempsey v. Alamo Hotels, Inc., supra; Stewart v. Barnes, 80 N.M. 102, 451 P.2d 1006 (Ct.App.1969). The basis of this distinction has usually been that assumption of risk involves 'willingness' whereas contributory negl......
-
State Farm Mut. Auto. Ins. Co. v. Duran
...on appeal if it is supported by such evidence. Montoya v. Travelers Ins. Co., 91 N.M. 667, 579 P.2d 793 (1978); Stewart v. Barnes, 80 N.M. 102, 451 P.2d 1006 (Ct.App.1969). Substantial evidence is relevant evidence which a reasonable person might find adequate to support a conclusion. Shirl......
-
Martinez v. Sears, Roebuck & Co.
...to be drawn therefrom will be considered, and any evidence unfavorable to the findings will not be considered. Stewart v. Barnes, 80 N.M. 102, 451 P.2d 1006 (Ct.App. 1969); Rein v. Dvoracek, 79 N.M. 410, 444 P.2d 595 FALSE IMPRISONMENT To support the determination of false imprisonment ther......
-
Williamson v. Smith
...of assumption of risk becomes a question of law where the evidence will support but one legitimate inference. Stewart v. Barnes, 80 N.M. 102, 451 P.2d 1006 (Ct.App.1969). The issue as to whether a servant assumed the risk of injury is ordinarily a fact question to be determined by the trier......