Turner v. McGee
| Decision Date | 21 February 1961 |
| Docket Number | No. 6707,6707 |
| Citation | 360 P.2d 383,1961 NMSC 23,68 N.M. 191 |
| Parties | Ben T. TURNER, Jr., Plaintiff-Appellee, v. Margie Jane McGEE, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Iden & Johnson, Richard G. Cooper, Albuquerque, for appellant.
Botts, Botts & Mauney, Albuquerque, for appellee.
This is an appeal from a judgment entered on a jury verdict in favor of the plaintiff, Ben T. Turner, Jr., against the defendant, Margie Jane McGee.
The proof showed that on December 13, 1957, some time between 7:30 and 8:00 a. m., Mrs. McGee, while driving four teen-age children to school in her 1952 Dodge automobile, was proceeding west on Menaul Boulevard in Albuquerque when she was involved in an accident. The street was paved but the paving was in poor condition. Also, there were some low places or dips where water would run across the road in wet weather, and in the low places the pavement was full of chuck holes, and sand and gravel had been deposited by receding water. The morning was cold, the windows of Mrs. McGee's car were closed, the heater was on, and the rear window had frost on it. There was a steady stream of traffic at this hour and Mrs. McGee proceeded at about 30 miles per hour in her lane of travel and approximately two lengths behind the car immediately ahead of her. Upon arriving at a point some 250 to 300 yards east of the intersection of Menaul and State Highway 422 a traffic light at the intersection turned red for traffic on Menaul and the line of cars immediately ahead of Mrs. McGee stopped, and she in turn stopped some 18 feet behind the car ahead of her.
The plaintiff Turner had been following Mrs. McGee in the line of traffic on Menaul and one and one-half to two car lengths behind her. He was driving a 1955 Chevrolet coupe belonging to his employer. A business associate was riding in the front seat on his right and they were talking. When Mrs. McGee stopped, as stated above, Mr. Turner did not see her slowing to a stop but noticed the car after it was stopped, and then put on his brakes and brought his car to a stop just behind her, but not so suddenly as to have to skid his wheels. Immediately thereafter, a car driven by one Dennis Horton struck the Turner car from behind, forcing the front of the car into the rear of Mrs. McGee's car. The Turner car was damaged front and rear, but mostly in the rear, and the McGee car had the red lenses broken out of the tail lights, the bumper guards were knocked off, and it received a few scratches. Turner was injured. Horton explained his inability to stop by saying that when he saw Turner stopping suddenly he put on his brakes but because he was in one of the dips or low places in the pavement and sand and 'chuck holes' were present, he skidded some 10 to 15 feet and into the rear of Turner's car.
Suit was filed by Turner against both Mrs. McGee and Horton in two separate causes of action. A settlement having been effected with Horton, that cause of action was dismissed and the suit proceeded against Mrs. McGee with the result already noted.
Three points are relied on for reversal. However, it is only necessary that we notice one of them to the effect that the court should have sustained a motion for a directed verdict at the close of plaintiff's case as renewed at the conclusion of all evidence and as again set forth in a motion for judgment notwithstanding the verdict. The motions were based on a claim that there was insufficient substantial evidence of negligence on the part of Mrs. McGee for the court to submit the same to the jury; and also, if there was any evidence of negligence there was insufficient evidence to establish that the same proximately caused the accident or injuries.
The only negligence claimed by Turner as the cause of the accident was the sudden stopping by Mrs. McGee and violation of Secs. 64-18-24(c) and 64-18-25(a), N.M.S.A.1953.
They read as follows:
'64-18-24 * * * (c) No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.'
'64-18-25 * * * (a) Any stop or turn signal when required herein shall be given either by means of the hand and arm or by a signal lamp or lamps or mechanical signal device * * *.'
Section 64-18-24(c) requires the giving of a signal when there is opportunity to do so before stopping or suddenly decreasing speed, and Sec. 64-18-25(a) provides that the signal shall be given by hand and arm, or by signal lamp or mechanical signal device.
Admittedly, no hand and arm signal was given by Mrs. McGee. The evidence raises a question of whether the red tail lights, being a mechanical signal device were operating. Immediately upon the happening of the accident Mrs. McGee got out of her car and Turner did likewise. Turner stated that Mrs. McGee's tail lights were not working. She replied to the effect that they did and that she had a current brake and light sticker, and then noticing the broken lens stated further that it would be impossible to tell if they worked now since they had been...
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