Thompson v. Anderman, 5834

• Citation: 1955 NMSC 45,285 P.2d 507,59 N.M. 400
• Decision Date: 18 May 1955
• Docket Number: No. 5834,5834
• Parties: James Patrick THOMPSON, a minor, by James B. Thompson, his father and next friend, Plaintiff and Appellee, v. George ANDERMAN, Percy P. Glasebrook and Joseph Land d/b/a Albuquerque Bus Company, Defendants and Appellants.
• Court: Supreme Court of New Mexico

Page 507

285 P.2d 507

59 N.M. 400

James Patrick THOMPSON, a minor, by James B. Thompson, his father and next friend, Plaintiff and Appellee, v. George ANDERMAN, Percy P. Glasebrook and Joseph Land d/b/a

Albuquerque Bus Company, Defendants and Appellants.

No. 5834.

Supreme Court of New Mexico.

May 18, 1955.

As Amended on Denial of Rehearing July 1, 1955.

Motion for Leave to File Second Motion for Rehearing Denied

July 18, 1955.

Rodey, Dickason, Sloan, Mims & Akin, James C. Ritchie, Albuquerque, for appellants.

Joseph L. Smith, Lorenzo A. Chavez, Arturo G. Ortega, Albuquerque, for appellee.

LUJAN, Justice.

James Patrick Thompson, a minor, by James B. Thompson, his father and next friend, brought suit against George Anderman, Percy P. Glasebrook and Joseph Land doing business under the name of Albuquerque Bus Company, to recover damages for injuries sustained by said minor, as a result of the alleged negligence of defendants. The jury, for their verdict, answered the issues in favor of the plaintiff, and, from a judgment entered in accord therewith, the defendants appeal.

For convenience we will refer to James Patrick Thompson, a minor, as the plaintiff and to the defendants as the Bus Company.

The complaint, among other things, alleges:

'2. That at about 3:40 p.m., on May 28, 1953, the minor James Patrick Thompson was a passenger for hire on one of the buses operated by the defendant and driven by its agent, servant and employee in the course and scope of its business as a common carrier; that said bus was traveling in an easterly direction on a public thoroughfare designated as Lomas Boulevard N.E., at its intersection with LaVeta Street N.E., when defendants' agent, servant and employee partially completed a left turn from Lomas Boulevard N.E. to LaVeta Street N.E., and negligently parked defendants' bus with its rear end approximately six feet on the paved portion of Lomas Boulevard N.E., without the giving of any signal or warning of his intention of so parking, and immediately thereafter permitted the minor, James Patrick Thompson to alight from the rear door of said bus in the middle of the paved portion of Lomas Boulevard N.E '3. That the defendants negligently failed to stop their bus at the regular bus stop off the highway in a place of safety for the purpose of discharging the minor, James Patrick Thompson, but instead of doing so chose to invite him to alight from the bus on the paved portion of the highway when defendants knew or should have known that heavy vehicular traffic was approaching in such a way as to endanger him as he stepped upon the pavement and when, had the defendants' agent, servant and employee looked with any care to the rear, he must have seen the 1950 model Doge one-half ton truck which collided with the minor an instant after he alighted from the bus in the middle of Lomas Boulevard N.E.

'4. That as a proximate result of the negligence of the defendants and each of them in breaching their duty to furnish James Patrick Thompson a minor, a safe place in which to alight under the circumstances and in failing to give any warning of their intent to park their bus on the paved portion of the highway to the minor James Patrick Thompson or any person lawfully traveling on said public thoroughfare including the driver of a 1950 Dodge one-half ton truck, Robert Dean Becker, who was proceeding in an easterly direction on Lomas Boulevard N.E. immediately behind said bus, the minor James Patrick Thompson was struck by the left front of the Becker truck and thrown to the pavement with great force and violence.

'5. That as a further proximate result of defendants' negligence as aforesaid, James Patrick Thompson, a minor, has been confined in the Bataan Memorial Hospital in a semi-comatose and critical condition with a basal skull fracture, cerebral concussion, brain stem damage and chest complications due to bleeding together with extreme mental and physical shock.

'6. That James Patrick Thompson, a minor, has and will sustain severe physical and mental pain and anguish and has sustained injuries to the brain and nervous system which are permanent in nature and has and will incur bills in large sums for neurosurgeons and medical specialists and hospitalization, all to plaintiff's damage * * *.'

The answer denied the allegations of the complaint and pleaded as an affirmative defense contributory negligence on the part of the plaintiff.

The accident occurred on May 28, 1953, at approximately 3:30 p.m., in Albuquerque at about the intersection of Lomas Boulevard N.E., and LaVeta Street N.E. Lomas Boulevard is twenty-eight feet in width, with dirt shoulders on each side, approximately twenty feet wide, and runs east and west. LaVeta Street which intersects it, is estimated as being thirty-four feet wide, running north and south. There is no path at this intersection for pedestrians to cross Lomas Boulevard. A barricade, eight feet and one inch long, was placed in the middle of LaVeta Street, at the north end, with a clearance on each side of about ten or twelve feet to allow traffic to go by. The regular stop for busses was approximately sixty or seventy feet from the intersection of aforementioned streets. The plaintiff was a passenger for hire on this particular bus which he boarded at the corner of North Carlisle and Lomas Boulevard. When the bus reached the intersection of Lomas Boulevard and LaVeta Street it was temporarily stopped facing the east, then it proceeded to turn onto LaVeta Street and it stopped at a 45-degree angle on the north traffic lane of Lomas Boulevard, the back end of the bus being about six inches from the center line thereof, and the plaintiff was permitted to alight therefrom. The place for entrance is at the forward part of the bus, and the place for exit is at the rear of the bus. The doors are opened and closed by a lever under the control of the motorman. When the bus stopped as aforesaid, the door opened and the plaintiff jumped out and ran approximately two or three feet over the center line on the south side of Lomas Boulevard into a pickup truck, which was traveling in an easterly direction, and was severely injured.

The evidence discloses the following facts:

Mr. Nichols Melancon being called as a witness for the plaintiff testified in substance as follows: That he was a passenger on the bus which carried the plaintiff; that as the bus was going east on Lomas Boulevard, the street was blocked, due to repairs, and that the bus stopped in the center of the street.

'* * * Q. Just what--tell us what you saw. A. Well, as the bus was going east on Lomas Boulevard, the street was blocked, due to repair, and the bus stopped, I suppose you would say the center of the street.

'Q. The center of what street? A. Lomas, heading east, and he hesitated a moment, and there was an indication from the crew that the street would be open in a short time, so he turned north on LaVeta. That is, he didn't get onto LaVeta, the end of the bus was still on the pavement, and prior to him moving on, from the center of the street, the boys asked him if he would open the door and let them out. The bus driver said 'No, I can't let you out, here.' However, after he moved from the center of the street, going into La Veta, as he stopped, he opened the door, and--(Interrupted)

'Q. Which door did he open? A. The back door.

'Q. And did he actually converse with the boys, in your hearing? A. Not after he opened the door.

'Q. Did he converse with them, when they asked him to let them off the bus? A. Yes, he did.

'Q. And in what manner was he requested to open the door? A. The boys just said 'Open the door and let us out,' and he said 'I can't open the door, here,' and then he moved, and then the door opened.

'Q. And did he open the door? A. To my knowledge, he did open it.

* * *

* * *

'Q. And then what happened? A. There was three boys standing in the doorway, and the largest one of the boys ran out, and was struck by a pick-up truck.

* * *

* * *

'Q. Did you hear the bus driver make any other comment, at the scene of the accident? A. He went over, and used the telephone, and got back on the bus, and he said 'How did the boy get off the bus, did he get out the window?' He said he didn't open the door.

'Q. He said that he did not open the door? A. That was his statement.'

On cross-examination he testified:

'A. From where I was sitting, I could not see whether he opened the door, or not. However, I have ridden busses quite a lot, and whenever you hear the air release, and the click, the door opens. And that is what happened in this case, the door opened.'

Bobby Roeder, called by the plaintiff, testified substantially as follows: That when the bus reached Lomas Boulevard and LaVeta Street the bus driver stopped at about the middle of Lomas Boulevard and that the plaintiff yelled to be let off; that the bus driver opened the door; that plaintiff ran out and the truck hit him.

Charles Cope, testified substantially as follows: That the bus was turning into LaVeta Street; that there was a road block there, so the bus driver had to stop the bus; that plaintiff asked the bus driver to please open the door and let him out; that the bus driver opened the door and plaintiff ran out without looking where he was going, and then was struck by the truck.

Donald Jones testified that the bus stopped at about the middle of Lomas Boulevard just as it was turning onto LaVeta Street and let plaintiff off.

W. V. Freeman testified that he was riding with his wife on Lomas Boulevard at the time of the accident; that they were about 100 feet behind the pick-up truck that was immediately behind the bus; that when the bus reached LaVeta Street it turned on said street and stopped at an angle with the back end of the bus about six inches to a foot from the center of the street; that within a second or so the plaintiff started running south across Lomas Boulevard and ran into the pick-up; that...