Turner v. Silver

Decision Date17 October 1978
Docket NumberNo. 3193,3193
PartiesR. John TURNER, Plaintiff-Appellee, v. Edward M. SILVER, Defendant, Third Party Plaintiff-Appellant, v. DAVID B. HIBLER AND GREEN CHAPARRAL TURF RANCH, INC., Third Party Defendants-Appellees.
CourtCourt of Appeals of New Mexico
James C. Ritchie and Kenneth J. Ferguson, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for third party plaintiff-appellant

SUTIN, Judge.

Silver is the defendant who as a third party plaintiff filed a third party complaint against Hibler and Green Chaparral Turf Ranch, Inc., his employer, as third party defendants (Hibler). Hibler was granted summary judgment. Silver appeals. We affirm.

Hibler was operating a pickup truck east on Highway I-40 approaching an exit to Louisiana Boulevard in Albuquerque when his motor stopped. Turner, plaintiff, stopped some five or six cars behind Hibler. Without any explanation, Silver, while operating his car, smashed into the rear end of Turner's car, injuring Turner. The trial court found that "There is no issue of fact or evidence that the third party defendants were negligent in proximately causing the accident in question."

The only question on this appeal is whether a genuine issue of material fact exists that Hibler's negligence proximately caused Silver to smash into Turner.

The facts most favorable to Silver are as follows:

Hibler, about 161/2 years old, was driving a pickup truck 55 to 60 miles per hour east in the center lane of Highway I-40, a three lane highway, intending to exit on Louisiana Boulevard. It was noon time and traffic was heavy. The pickup had two gas tanks; the main tank and an auxiliary tank. The pickup was operating on the auxiliary tank. Hibler had not checked the amount of fuel in the tanks. Suddenly the auxiliary tank became empty, the motor stopped running, and the pickup coasted for about a quarter of a mile and stopped in the center lane. Hibler turned on his emergency flashers as soon as he thought something was wrong.

The gas lines were empty. Hibler thought the gas lever was pointed to the main tank, but it was on the auxiliary tank. He switched the lever and tried to start the motor for about two minutes, but the pickup moved so slowly that the gasoline would not pump into the gas lines, and the battery went dead.

While coasting, Hibler tried to turn to the right lane and off the road, but traffic was moving in the right lane and no one allowed him to do so. He could not turn to the left because "the drainage ditch" was there. After the pickup stopped, Hibler and his guests tried to push the pickup off the center lane. Approximately 5 or 6 minutes had passed from the time the motor stopped to the time the pickup was pushed. Vehicles in the right land had stopped and were backed up for a half mile or a mile to the rear, or west. Vehicles in the left lane were moving. There were about five or six vehicles stopped behind Hibler's pickup which were unable to pass. Plaintiff, Turner, operated the last vehicle that stopped behind Hibler's pickup.

As Hibler was trying to push his pickup off the road, another man with a pickup began to push the Hibler truck off the road. During this event, Silver, driving east, smashed into the rear end of Turner's vehicle.

Hibler was given a traffic citation for "obstructing traffic" and paid a $10.00 fine, but understood that he was guilty.

Silver presented no affidavits, evidence, facts or testimony to explain his own conduct with reference to striking Turner's vehicle.

Silver claims that a genuine issue of material fact exists whether Hibler was negligent, and whether his negligence was a direct contributing cause of the accident.

A. A genuine issue of material fact exists whether Hibler was negligent.

A genuine issue of material facts exists whether Hibler was negligent in one respect.

Hibler was driving the truck on a heavily trafficked freeway in Albuquerque. He knew or should have known that if the truck ran out of gas, traffic in the center lane would back up behind the stalled truck. Hibler owed a duty to other drivers on the highway to take reasonable precautions to prevent the truck from stopping on the highway. Keller v. Breneman, 153 Wash. 208, 279 P. 588, 67 A.L.R. 92 (1929). Hibler seems to have taken no precautions to avoid this event. A genuine issue of material fact exists whether Hibler was negligent.

Hibler strenuously argues that the pickup did not run out of gas; that it was a mechanical failure and that "it is incredible that Silver could contend that Hibler ran out of gas." A party granted summary judgment should not persist in searching for evidence most favorable to its position. We find sufficient evidence from Hibler's testimony that the auxiliary tank ran out of gas and the gas lines were empty.

Hibler was cited for obstructing traffic under a municipal ordinance and paid the fine. He admitted that when he paid his fine, he understood that he was guilty of the charge.

Evidence that a party charged with a traffic offense merely paid a fine, is not an admission against interest in the civil case involving the offense, and is not admissible in evidence. Barrios v. Davis, 415 S.W.2d 714 (Tex.Civ.App.1967); Lucas v. Burrows, 499 S.W.2d 212 (Tex.Civ.App.1973); Kelly v. Simoutis, 90 N.H. 87, 4 A.2d 868 (1939), cited on other grounds in Trujillo v. Chavez, 76 N.M. 703, 417 P.2d 893 (1966). However, where that person pays a fine because he thought he was guilty, evidence of the offense committed is admissible in evidence. Kelly, supra. We have held that a plea of guilty to an offense is admissible in evidence in a civil case. Valencia v. Dixon, 83 N.M. 70, 488 P.2d 120 (Ct.App.1971); Vargas v. Clauser, 62 N.M. 405, 311 P.2d 381 (1957). It has also been held that absent a plea of guilty, proof of conviction of criminal charges is inadmissible in the trial of a subsequent civil action for tort arising out of the same act. Gray v. Grayson, 76 N.M. 255, 414 P.2d 228 (1966).

We hold the rule to be that a party who is charged with a traffic offense and pays a fine because he understood or thought that he was guilty, is akin to a party who pleads guilty. It constitutes an admission against interest and is admissible in evidence. Admissions made by a party are the strongest kind of evidence. Such admissions are binding and conclusive upon him if uncontradicted and unexplained. Hiniger v. Judy, 194 Kan. 155, 398 P.2d 305 (1965). We have held that such admissions constitute substantial evidence sufficient to support a finding. Svejcara v. Whitman, 82 N.M. 739, 487 P.2d 167 (Ct.App.1971).

However, Silver relies on Albuquerque Traffic Code Section 71.35 that: "It shall be unlawful for any person to operate or to stand a vehicle on any public way in such a manner as to obstruct the free use of such public way."

Silver did not plead or prove the existence of this ordinance. We cannot take judicial notice of municipal ordinances where summary judgment is granted. Such ordinances are matters of fact which must be pleaded and proved the same as any other fact. Coe v. City of Albuquerque, 81 N.M. 361, 467 P.2d 27 (1970). For purposes of summary judgment, Hibler's violation of the municipal ordinance was not available to Silver.

Silver also relies on § 64-18-49, N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 2). It reads:

(a) Upon any highway outside of a business or residence district No person shall stop, park, Or leave standing any vehicle, whether attended or unattended, Upon the paved or main-traveled part of the highway when it is practicable to stop, park, Or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of 200 feet in each direction upon such highway.

(b) This section shall Not apply to the driver of any vehicle Which is disabled while on the paved or main-traveled portion of a highway In such manner and To such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position. (Emphasis added.)

Did Hibler violate this statute? Shelton v. Lowell, 196 Or. 430, 249 P.2d 958, 961-62 (1952) says:

In construing the statute, we must give it a practical and common-sense meaning and try to ascertain the intent of the legislature. The obvious meaning of that section of the statute relied upon is that where the car is temporarily disabled so that it is impossible to avoid temporarily leaving such vehicle on the highway, the driver of the stalled car is relieved from responsibility. Where an emergency is created . . . the disabled car is not permitted to remain on the highway for a protracted length of time when there is a reasonable opportunity to remove it, and in the exercise of reasonable care, it could have been removed.

The only excuse for stopping on the pavement is an emergency or exigency which leaves no other choice. Fitzpatrick v. California & Hawaiian Sugar R. Corp., 309 Ill.App. 215, 32 N.E.2d 990 (1941).

Under § 64-18-49, Supra, a driver must always park off the highway when practical to do so. Horrocks v. Rounds, 70 N.M. 73, 370 P.2d 799 (1962). If the vehicle is Disabled and it is Impossible to avoid stopping and temporarily leaving it in such position, the statute is not applicable. Gutierrez v. Koury, 57 N.M. 741, 263 P.2d 557 (1953); Terrel v. Lowdermilk, 74 N.M. 135, 391 P.2d 419 (1964).

The meaning of the words "disabled" and "impossible" are stated with clarity in the Editorial Comment in the Annotation in 15 A.L.R.2d 909, 911 (1951), entitled "When is motor vehicle 'disabled,' " etc. It reads:

Thus, it has been held in a number of cases that in...

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