Terry v. Bisswell
| Decision Date | 11 April 1958 |
| Docket Number | No. 6348,6348 |
| Citation | 326 P.2d 89,64 N.M. 153,1958 NMSC 45 |
| Parties | L. H. TERRY, Plaintiff-Appellant, v. L. A. BISSWELL and B. C. Eppler, Defendants-Appellees. |
| Court | New Mexico Supreme Court |
William J. Heck, Hobbs, Leonard Howell, Midland, Tex., for appellant.
Atwood & Malone, Charles F. Malone, Russell D. Mann, Roswell, for appellees.
The plaintiff below appeals from the judgment of the district court of Lea County, entered notwithstanding the general verdict in his favor, setting aside the general verdict for plaintiff and judgment entered thereon for personal injuries suffered by him in being struck by an automobile driven by defendant on the streets of Lovington, New Mexico.
The basis of the trial court's action will appear from a special interrogatory submitted to the jury at defendant's request following the general charge and the negative answer to such interrogatory by the jury. The events leading up to the decisive ruling of the court are so well set forth chronologically in the brief of plaintiff's counsel that we take the liberty of appropriating same as a part of our statement of the proceedings below.
At the conclusion of the evidence, and at the request of the defendants, the trial court submitted a special interrogatory to the jury worded as follows:
'Was the plaintiff walking in the cross walk at the intersection, as cross walk is defined in the court's instructions, at the time of the collision?'
Eleven out of the twelve jurors found that the plaintiff was not walking in the crosswalk. Despite the finding of the jurors on this special interrogatory, they returned a general verdict for the plaintiff in the sum of $10,000. Such general verdict was worded as follows:
'We, the jury, find the issues in favor of the plaintiff and assess his damages at $10,000.00.
'/s/ Grady Richards
'Foreman'
After the court received the general verdict and the special interrogatory from the jury, the following proceedings occurred:
'The Court: Has the jury arrived at a verdict?
'The Foreman: We have, your Honor.
interrogatory which counsel will please inspect.
'The Court: (After counsel have inspected the interrogatory) Does counsel wish that I interrogate the foreman about the form of this?
'The Court: Make your motion.
'Mr. Malone: Come now the defendants and respectfully move this Court that the verdict of the jury be set aside and that judgment be rendered in favor of the defendants and against the plaintiff, notwithstanding the verdict, and as grounds therefor state:
'That the answer to the interrogatory by which the jury has determined that the plaintiff was not walking in the crosswalk at the intersection by eleven votes to one vote, which constitutes the required majority, necessarily results in an inconsistent verdict in that the law provides that, if the plaintiff was not in the crosswalk, then, as a matter of law, he is required under both the Statute and the Ordinance of the City to yield the right-of-way to the vehicle which was driven by the defendant, and is therefore negligent himself per se; and on the further ground that there can be no question of proximate cause as reasonable minds could not differ but that the acts of the plaintiff, was guilty of contributory negligence, were a proximately contributing cause of any injuries which the plaintiff has received.
Thereafter, the plaintiff moved the Court to set aside the judgment so rendered for the defendant and to reinstate the general verdict of the jury that was rendered for the plaintiff on the grounds that there was no inconsistency between the special finding and the general verdict, in that the general verdict necessarily was a finding by the jury that plaintiff's walking outside the crosswalk was not a proximately contributing cause of the accident. This motion was overruled by the Court.
The action of the learned trial judge was tantamount to a determination as a matter of law that the plaintiff's failure to cross within the crosswalk was a proximately contributing cause of the plaintiff's injuries and damages.
In the foregoing recitation in narrative form from the brief in chief of the plaintiff, it will be seen the trial judge interpreted the special interrogatory and the answer to it as 'tantamount to a determination as a matter of law that the plaintiff's failure to cross within the crosswalk was a proximately contributing cause of the plaintiff's injuries and damages.' The question whether he erred in taking this view of the evidence constitutes the decisive issue in the case.
It was on the evening of January 23, 1956, that plaintiff returned from work to his apartment, donned a sport cost, visited with a friend there for a short time, had a drink of whiskey while there and then proceeded to the Llano Hotel to visit with his job foreman, one Mapes. While waiting to see him he had a cup of coffee. He walked out of the hotel with Mapes and talked briefly with him on the sidewalk. The Llano Hotel is located at the southwest corner of the intersection where the accident occurred.
His conversation with Mapes concluded, the plaintiff started to cross the intersection of Avenue E and Main Street in Lovington, New Mexico. He looked both ways before leaving the curb at the southwest corner of the intersection to ascertain whether there were cars approaching from either direction. Noticing none, he began to cross the intersection, proceeding in an easterly or northeasterly direction. When he arrived at the center of the highway he took another look both ways and observed the defendant Eppler's Ford station wagon approaching from the south proceeding north. He estimated it as about 120 feet south of him as he got to center of the highway. Thinking he had time to cross, he continued directly across the street to the east side of the intersection. The first thing he knew, the station wagon was right on him and he did not have time to take another step.
The station wagon struck the plaintiff when he was approximately three-fourths of the way across the intersection. He had been proceeding across the street at a normal gait. He was struck on the right side by the right front fender and right headlight of the station wagon. The fender was bent and the headlight broken. The plaintiff did not hear the sound of any horn nor the screeching of brakes nor did he see any signal. His hearing was good and he estimated the speed of the car at 35 miles per hour.
The accident happened about 7:30 p.m. while the station wagon was being operated by defendant, Biswell, although owned by defendant, Eppler, who was riding on the seat with Biswell at the time. Main Street, according to the investigating officer, is 58 feet, 6 inches wide and contains two northbound and two southbound traffic lanes separated by a center line in the middle of the highway. Avenue E intersects Main Street in an east-west direction and is 49 feet 4 inches wide, according to the measurements of the investigating officer.
At the time of the accident the weather was fair, the blacktop pavement was dry and there were no traffic lights at the intersection. There was an incandescent street light at the northeast side of the intersection, service station lights northwest of the intersection, a neon sign in front of Llano Hotel on southwest corner, some lights in the windows of the Jackson Chevrolet building on southeast corner and lights from service stations were visible all along the road. Defendant, Biswell, admitted he observed a showing of 25 miles per hour speed about a block before the accident occurred.
The defendant, Biswell, was a sergeant on the New Mexico State Police force at time of the accident. He testified he was driving north on the inside lane when suddenly the plaintiff came into view of his headlights. He said he looked at his speedometer and it showed 25 m.p.h. The plaintiff, according to his testimony was about 2 or 3 feet beyond the center line and appeared to be crossing the street diagonally. He immediately applied his brakes and turned his wheel to the left in an effort to miss the plaintiff but was unable to do so. He says his arm was against the horn and it blew. The collision occurred in the middle of the intersection. He claimed not to know how far plaintiff was from him when he first saw him, though he says he applied his brakes immediately when he did.
Although claiming to have been driving at the more than 25 m.p.h., his car left skid marks that were measured by the investigating officer and found to be 64 feet 9 inches on left side. The marks started at the edge of the center of the two northbound lanes and pulled toward the left or center of the highway. Dirt and glass were found around the traffic lane where the skid marks were located and more to the north part of the intersection. The skid marks started the length of the car plus 27 feet south of the south line of the intersection. The body of plaintiff was located by the investigating officer as being 7 feet 6 inches north of the north curb...
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