Sturgeon v. Clark, 6810

Citation364 P.2d 757, 1961 NMSC 125, 69 N.M. 132
Case DateAugust 23, 1961
CourtSupreme Court of New Mexico

R. D. Mann, Atwood & Malone, Roswell, for appellant.

Schauer & Stiff, Roswell, for appellee.

MOISE, Justice.

Defendant appeals from a judgment in the amount of $51,100 entered on a jury verdict in a case arising out of a collision between a station wagon being driven by plaintiff and a pickup truck being driven by defendant. In the accident plaintiff was injured and the station wagon being driven by him was damaged.

Defendant's first point is based upon the trial court's permitting plaintiff to testify concerning a doctor's findings as to plaintiff's condition prior to the accident on the ground it was hearsay. The testimony and objection as shown by the record are quoted as follows:

'Q. Were you given a complete physical examination by Dr. Steve Marshall? A. Yes, sir.

'Q. What was the result of that examination?

'Mr. Mann:--We object as to the result of the examination because Dr. Marshall can testify to that.

'Mr. Stiff:--Dr. Marshall is in the Pacific right now.

'The Court:--Overruled.

'A. Please repeat your question.

'Q. What was the result of that examination? A. He gave me a complete examination and I passed everything fine on it and his final phase of it was he wrote 'Fine physical specimen.'

'Q. Did this examination include an examination of your back? A. It included an examination of everything.'

Plaintiff in his brief anticipates defendant's argument to the effect that even if the question was objectionable as calling for hearsay evidence, the ruling by the court will be sustained because the objection was not properly stated and the court's attention not directed to the defect relied upon. That such is the rule cannot be doubted. Alvarado Min. & Mill Co. v. Warnock, 25 N.M. 694, 187 P. 542; Whitley v. State, 36 N.M. 248, 13 P.2d 423.

Defendant would avoid the consequences of his failure to object that the question called for hearsay testimony by arguing that there could not have been any failure to understand the basis of his objection and accordingly attention of the court had been directed to the error. With this we cannot agree. The import of the objection was merely to the effect that Dr. Marshall could testify on the subject and upon being advised that he was not available, no further complaint was voiced and the objection was overruled. To now say that the objection was intended to call attention to the hearsay nature of the answer that was being called for, and that the court so understood it, would certainly be reading into the objection something not implicit therein and under the rule of the cases cited supra this will not be done. See also Scofield v. J. W. Jones Construction Company (N.S.L.) a corporation, 64 N.M. 319, 328 P.2d 389, where new reasons were advanced on appeal to those stated at the trial. The situations there and here are comparable. McCord v. Ashbaugh, 67 N.M. 61, 352 P.2d 641, relied on by defendant, does not support his position.

Defendant's second point arises because of instruction No. 10 given by the court. The instruction reads as follows:

'You are instructed that at the time of the collision in question, the laws of the State of New Mexico provided in part as follows:

'(64-18-18) 'Whenever any highway has been divided into two roadways by leaving an intervening space or by a physical barrier or clearly indicated dividing sections so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the right-hand roadway.'

'Therefore, if you find that the highway where defendant was driving his motor vehicle just prior to the time the collision in question occurred had been divided into two roadways by leaving an intervening space or by physical barrier or clearly indicated dividing sections so constructed as to impede vehicular traffic, and if you further find that the defendant prior to the time said collision occurred had been driving his vehicle on some part of the highway other than the right-hand roadway then you are instructed that the defendant was guilty of negligence as a matter of law.'

The objection thereto as shown by the record was as follows:

'The Defendant further accepts to the giving of the Court's instruction No. 10 dealing with Section 64-18-18 of the New Mexico Statutes concerning divided highways, and as ground for the exception states that the vehicle driven by the Defendant Clark which was on the South side of the medium was a vehicle exempt from the ordinary rule of driving on the right side of the road, such exemption existing by statutory law, and further that said Instruction is not sustained by the evidence and is so worded as to place undue emphasis covering conduct of the Defendant under the circumstances.'

The first part of the objection and the argument of defendant in connection therewith is directed at the fact that the court in its instruction failed to take into account the exemption from the operation of Sec. 64-18-18, N.M.S.A.1953, contained in Sec. 64-15-4(b), N.M.S.A.1953. This latter section reads as follows:

'Unless specifically made applicable, the provisions of this act shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work upon the surface of a highway but shall apply to such persons and vehicles when traveling to or from such work.'

The accident in the instant case occurred about 45 feet west of the end of a divider some 385 feet long constructed between the north and south lanes of the highway. Defendant was the contractor on the project and had driven his pickup truck into the eastbound (south) lane. He was headed west and his car had been parked at the east end of the divider and as close to it as possible while he got out to look at some rip rap work that was being done by a subcontractor off the highway but adjacent to it, or to talk to the subcontractor. The rip rap work was a part of the overall project. Upon completing his mission at this point defendant got in his truck and drove along the south side of the divider toward the west. It was about 4:30 p. m. and he was on his way to the west end of the project to see that the warning lights were properly set. Just after passing the west end of the divider, defendant collided with the car of plaintiff who was proceeding toward the east on the outside edge of the pavement in the eastbound lane.

Do these facts disclose a situation for the application of the exemptions of Sec. 64-15-4(b), N.M.S.A.1953? Was defendant a person and his pickup truck a motor vehicle 'actually engaged in work upon the surface of the highway' so as to be exempted from the provisions of the statute governing the operation of motor vehicles on the highway? We think not.

The section of the statute creating the exemption should be strictly construed, Groves v. Meyers, 35 Wash.2d 403, 213 P.2d 483, and the right of the defendant to the benefits of the exemption must be clear and unmistakable. State ex rel. Wilson v. Board of County Commissioners of the County of Quay, 62 N.M. 137, 306 P.2d 259. We fail to see how it can be very seriously contended that when defendant was in the process of driving several miles down the road to the end of the project he was 'actually engaged in work upon the surface of the highway.' The situation is not altered by the fact that he has just departed from a place where he had stopped his car on the surface of the highway while he inspected the rip-rapping operation, or discussed the progress of that work with the subcontractor.

We are clear that the legislature incorporated Sec. 64-15-4(b), N.M.S.A.1953, into the statute in recognition of the fact that in constructing, repairing and maintaining highways there are circumstances under which men and equipment must be present on the surface of the highway without being held to comply with the rules of the road generally binding. However, while providing for performing necessary work without being in violation of statutes otherwise applicable, they were careful to restrict the exemption to situations where actual work was being performed on the surface. It is not for us to extend the application beyond the clear language used. Compare Tiedebohl v. Springer, 55 N.M. 295, 232 P.2d 694.

Defendant relies on a number of cases from other jurisdictions, all of which we find easily distinguishable by virtue of the fact that they involved actual work on the surface of the highway. We make mention of only one. Johnson v. Bergquist, 184 Minn. 576, 239 N.W. 772, is a case where the equipment was standing on the highway with its motor running while the workmen were adjusting the grader blade preparatory to using it on the surface of the highway, when the accident occurred. The court held that under the facts, this constituted work on the surface so as to bring the case within an exemption like that in Sec. 64-15-4(b), N.M.S.A.1953. This case is as easily distinguished under its facts from the case sub judice as the others cited by defendant.

It follows that the first portion of defendant's objection to instruction No. 10 was not well founded.

The argument on the second part of defendant's attack on instruction No. 10 proceeds on the basis that the instruction omitted any requirement that negligence there described had to proximately contribute to plaintiff's injury. There can be no argument that in order to be liable to plaintiff the defendant must not only have been negligent, but the negligence must have been the proximate cause of the injuries suffered. Terry v. Bisswell, 64 N.M. 153, 326 P.2d 89; Hartford Fire Insurance Company v. Horne, 65 N.M. 440, 338 P.2d 1067. Even so, it does not follow that a reversal is required. This is true for a number of reasons.

The court gave the jury instruction No. 2 which stated, among other things, 'If you...

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    ...nor having argued this issue on appeal, defendant is precluded from attacking instruction No. 3 on any proper ground. Sturgeon v. Clark, 69 N.M. 132, 364 P.2d 757, and cases cited [71 N.M. 263] The cause is remanded to the district court with direction to set aside its order of dismissal, t......
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