Vigil v. Atchison

• Court: New Mexico Supreme Court
• Writing for the Court: BRATTON, J. (after stating the facts as above).
• Citation: Vigil v. Atchison, 28 N.M. 581, 215 P. 971, 1923 NMSC 53 (N.M. 1923)
• Decision Date: 10 May 1923
• Docket Number: No. 2652.,2652.
• Parties: VIGILv.ATCHISON, T. & S. F. RY. CO.

28 N.M. 581

215 P. 971

VIGIL

v.ATCHISON, T. & S. F. RY. CO.

No. 2652.

Supreme Court of New Mexico.

May 10, 1923.

Syllabus by the Court.

Evidence reviewed, and held to sustain a verdict of the jury, which required a finding by it, that the engineer operating the train in question saw the appellee on the railway crossing, which constituted a position of peril, within time to have slackened the speed or to have stopped the train, thereby avoiding the accident and the resulting injury.

A person who is suddenly placed in a position of peril, and thereby becomes so frightened or excited that he is unable to deliberate upon the safety of the comparative courses which are open to him, is not required to act with that degree of care and prudence which would otherwise be obligatory.

Evidence reviewed, and held, that the facts relied upon by the plaintiff are not so manifestly improbable, absurd, or ridiculous that the minds of reasonable men could not differ in reaching the conclusion that they are untrue.

Where special interrogatories are submitted to the jury, counsel have the right and should be permitted to refer to them, to discuss the evidence and marshal the facts which bear upon the subjects embraced within such special interrogatories, and as a conclusion or deduction from such evidence to suggest what answers should be given. Counsel may not properly urge that they be answered in a certain manner regardless of the evidence, nor that such special interrogatories constitute a trap within which to catch the jury.

The jury being constituted of persons who could not read, write, nor speak the English language, requested the court to furnish it the services of an interpreter to assist such jury. Pursuant to such request, the court administered an oath to the official court interpreter to merely read or write whatever the jury desired read or written, and to keep the proceedings of the jury secret. After the interpreter had entered the jury room, counsel, who had been present while such interpreter was being sworn and instructed, first objected thereto. Held, any possible error had been waived and that counsel could not thereafter object.

Appeal from District Court, Sandoval County; Hickey, Judge.

Action by Elias Vigil against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Where a jury consisted of persons who could not read, write, nor speak the English language, requested the services of an interpreter, and the court administered an oath to the official court interpreter to merely read or write whatever the jury desired read or written and to keep the proceedings secret, defendant's counsel, having stood by without objection until the interpreter had entered the room, cannot be heard to thereafter object.

This action was instituted by the appellee in the district court of Sandoval county for the recovery of damages for personal injuries, which he claims to have sustained as the result of an accident, in which one of appellant's passenger trains collided with the wagon drawn by a span of horses then being driven by appellee. This is charged to have occurred on the evening of February 5, 1917, at about 6:45 p. m., at a certain crossing on appellant's line of railway, known and called “Angostura Crossing.” Appellant resided at about 1,400 feet southeasterly from this crossing, and his father resided on the opposite side of the railroad, a very short distance southwesterly from said crossing. On the evening in question, appellee started with said wagon and team to go from his home to that of his father, and in so doing it was necessary for him to cross the railroad at the crossing in question. When about halfway from his home to this crossing, the team became frightened and started running away, and in so doing became uncontrollable. He endeavored to stop them, but was unable to do so. That they ran to the crossing and there stopped or balked on the track, the front wheels of the wagon then being between the rails. That about this time one of appellant's passenger trains was approaching said crossing from the north, being then about one-half mile away, and was there rounding a curve and starting down the straight line of track toward the appellee, so that the headlight on the engine pulling said train began to throw its rays upon him, his team, and his wagon. That he then began whipping his team, and using every effort to get the horses off the track, and as the train approached he became greatly excited and badly frightened. That the whistle on said engine at once began blowing, and continued so to do until the train reached the crossing and collided with the wagon, throwing the appellee out and onto the ground, thereby breaking one of his kneecaps, which caused him great pain, suffering, and anguish, required him to remain in bed for about three months, totally incapacitated him for work for about one year, and permanently injured his knee, so that he will never again have its full use. He further showed that the train in question at the time it rounded the curve and threw its headlight upon him, being then about one-half mile away, was traveling at a speed of from 10 to 20 miles per hour, and that such speed was increased until at the time it struck him it was traveling at from 35 to 40 miles per hour; that this train consisted of an engine and four coaches, and when traveling at 20 miles per hour could be stopped within a distance of less than 300 feet; when going 30 miles per hour it could be stopped within a distance of 300 feet, and when traveling 35 to 40 miles per hour, it could be stopped within a distance of 400 to 500 feet.

Appellant denied appellee's cause of action, and pleaded as an affirmative defense that he had been guilty of contributory negligence in that he fell asleep while sitting in the wagon and approaching the crossing, and that while he was so asleep his team walked upon said crossing in front of the approaching train, and further that after discovering his perilous position, he negligently failed to back or drive his team off said track, or otherwise. By counterclaim, appellant sought to recover damages in the sum of $50 for injuries received by its engine during the collision.

A jury trial was had which resulted in a verdict in appellee's favor in the sum of $3,000, with accrued interest thereon in the sum of $640.

W. C. Reid, Geo. S. Downer, and E. C. Iden, all of Albuquerque, for appellant.

J. O. Seth, of Santa Fé, and H. B. Jamison, of Albuquerque, for appellee.

BRATTON, J. (after stating the facts as above).

Appellant contends that the court erred in overruling its demurrer to the evidence as well as its motion for a directed verdict. This is predicated upon the contention that there is no evidence of actionable negligence on the part of the agents and servants of appellant in the operation of the train in question. It is asserted in this connection that the doctrine of last clear chance or the discovered peril rule, constituting an exception to the right of a plaintiff, who is guilty of contributory negligence to recover damages, it must be shown that the engineer in charge of the train actually discovered the appellee in his position of peril within time to have slackened the speed or to have stopped the train in time to avoid the accident; that the rule does not extend to and include cases where, by the exercise of ordinary or due care, such peril might have been discovered. The case was tried below upon this theory. The following instruction was given to the jury:

“The jury are instructed that the railway company, defendant in this case, is in no way responsible, either for plaintiff's team running away, if you find from the evidence that it did run away, or for the fact that, after running away, the team immediately stopped and balked upon the railway company's track, if you find from the evidence that it did so stop, after running away, and balk upon the railway company's track, and you are further instructed that the only theory upon which you may render a verdict in this case in plaintiff's favor is that the engineer in charge of the locomotive which struck plaintiff's wagon saw plaintiff's peril and knew, from what he saw, that he could not get away from the track in time to prevent being injured; and you must therefore find from the evidence that the engineer in charge of the locomotive did see plaintiff upon the railroad track in time to have stopped the train and have avoided the injury, and that, when he saw plaintiff at a distance sufficient to have stopped his train and have avoided injury, such engineer knew that plaintiff would not, or could not, get off the track in time to avoid such injury.”

[1] We think there is sufficient evidence in the record to warrant the jury in finding that the engineer did see the perilous position of the appellee in time to have stopped the train before reaching the crossing, and to have thereby avoided such accident and the resulting injury. Jose D. Lucero, a witness for the appellee, testified that on September 17, 1917, at the request of the appellee, he went to the point about a half mile from this crossing where the curve ends and the straight track begins and there waited until a passenger train, corresponding in time...