Whitfield Tank Lines, Inc. v. Navajo Freight Lines, Inc.

• Decision Date: 10 May 1977
• Docket Number: No. 2688,2688
• Citation: 90 N.M. 454,1977 NMCA 52,564 P.2d 1336
• Parties: WHITFIELD TANK LINES. INC., Herman Pedroncelli and Transport Indemnity Company, Plaintiffs-Appellees, v. NAVAJO FREIGHT LINES, INC., and Robert White, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 1336

564 P.2d 1336

90 N.M. 454

WHITFIELD TANK LINES. INC., Herman Pedroncelli and Transport Indemnity Company, Plaintiffs-Appellees, v. NAVAJO FREIGHT LINES, INC., and Robert White Defendants-Appellants.

No. 2688.

Court of Appeals of New Mexico.

May 10, 1977.

Certiorari Denied June 8, 1977.

Henry G. Coors, IV, Robert N. Singer, Coors, Singer & Broullire, Albuquerque, for defendants-appellants

Thomas S. Watrous, Civerolo, Hansen & Wolf, P. A., Scott McCarty, Marchiondo & Berry, Albuquerque, for plaintiffs-appellees.

OPINION

LOPEZ, Judge.

The action involved in this appeal was begun in the district court of Taos County by the following parties: plaintiff Whitfield Tank Lines, Inc. (Whitfield) to recover property damages resulting from the alleged negligence of the defendants, Navajo Freight Lines, Inc. (Navajo) and driver, Robert White (White); Transport Indemnity Company (Transport) sued to recover workmen's compensation benefits paid to plaintiff's insured driver, Herman Pedroncelli (Pedroncelli was the driver of the truck owned by Whitfield); plaintiff Pedroncelli sued for personal injuries resulting from the alleged negligence of the defendants, Navajo, and Navajo's driver, White; Navajo counterclaimed against Whitfield and Pedroncelli for property damages.

Before trial the parties agreed to sever Transport as a party, allowing Transport to recover from a verdict rendered for Pedroncelli. The case was tried by a jury which awarded Whitfield the sum of $18,795.70 and Pedroncellie the sum of $74,400.00. Navajo and White moved for a remittitur, which the court granted, and an amended judgment was entered for Pedroncelli in the amount of $65,000.00. Navajo and White appeal the verdict and judgment Pedroncelli cross-appeals the remittitur. We reverse the judgment and remittitur.

Navajo presents six points for reversal: (1) the trial court erred by giving instructions on negligence per se relating to two statutes, §§ 64--18--8 and 64--18--9, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2, 1972), both of which had to do with the fact that Navajo's vehicle ended up on the wrong side of the road; (2) the court erred by refusing Navajo's instruction relating to Whitfield's violation of a federal regulation; (3) the court erred by refusing Navajo's instruction relating to Whitfield's violation of § 64--18--1.1 C, N.M.S.A. 1953 (2d Repl.Vol. 9, pt. 2, 1972); (4) the court erred by refusing Navajo's instruction regarding the duty of Pedroncelli to drive at a speed consistent with his ability to stop within the range of his headlights; (5) the court erred by denying Navajo the opportunity to present evidence regarding the surrounding circumstances and qualifications of Navajo's accident investigator, who had filed an accident report with the Department of Transportation; and (6) the court erred by permitting a state police officer to explain the meaning of his statement which supposedly gave an opinion on the issue of liability.

Pedroncelli's cross-appeal presents one point: The court erred by denying Pedroncelli's motion to amend the pleadings and by ordering a remittitur.

This case can be resolved by Navajo's first point. Because this case is to be remanded for a new trial, we shall discuss the other points argued by Navajo and the point advanced by Pedroncelli on cross-appeal.

Facts

About 6:00 a.m. on January 18, 1973, on U.S. 285, a two-lane highway, a collision occurred between the Whitfield vehicle, driven by Pedroncelli, consisting of the tractor and a propane tanker, and a vehicle owned by Navajo, driven by White, consisting of a tractor and two trailers. The weather was inclement and snowing heavily. The Navajo vehicle was proceeding south and the Whitfield vehicle north. The Navajo vehicle entered a snowdrift and jackknifed, sliding into the northbound lane in the path of the Whitfield vehicle. Whitfield's vehicle attempted to stop, skidded on ice in the roadway, remained in the proper lane of traffic, but collided with Navajo's truck.

The Court Improperly Submitted Instructions on Negligence Per Se

The defendants contend that the court committed reversible error by submitting instructions nos. 18 and 19, which were as follows:

'18. There was in force in the state at the time of the occurrence in question a certain statute which provided that:

'Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, and where practicable, entirely to the right of the center thereof.'

'If you find from the evidence that the defendant conducted himself in violation of this statute you are instructed that such conduct constituted negligence as a matter of law.'

'19. There was in force in the state at the time of the occurrence in question a certain statute which provided that:

'Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon roadways having width for not more than one (1) line of traffic in each direction each driver shall give to the other at least one-half of the maintraveled portion of the roadway as nearly as possible.'

'If you find from the evidence that the defendant conducted himself in violation of this statute you are instructed that such conduct constituted negligence as a matter of law.'

Instruction no. 18 related to § 64--18--8, supra, and instruction no. 19 related to § 64--18--9, supra.

'64--18--8. Drive on right side of roadway--Exceptions.--(a) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, and where practicable, entirely to the right of the center thereof, except . . . (None of the exceptions are applicable).

'. . . (b) Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except . . . (None of the exceptions are applicable).

'64--18--9. Passing vehicles proceeding in opposite directions.--Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon roadways having width for not more than one (1) line of traffic in each direction each driver shall give to the other at least one-half of the main-traveled portion of the roadway as nearly as possible.'

These instructions were requested by Whitfield and relate to the statutory requirement of driving on the right side of the road. The instructions were given in conformity with N.M.U.J.I. Civ. 11.1. Navajo objected asking that the instructions be modified to conform to N.M.U.J.I. Civ. 11.2 which contains a provision allowing justification or excuse of a statutory violation. The following language distinguishes N.M.U.J.I. Civ. 11.2 from N.M.U.J.I. Civ. 11.1:

'. . . unless you further find that such violation was excusable or justifiable.

'To legally justify or excuse a violation the violator must sustain the burden of showing that he did that which might reasonably be expected of a person of ordinary prudence acting under similar circumstances who desires to comply with the law.'

As we previously stated, N.M.U.J.I. Civ. 11.1, which is also called the 'per se' rule, does not contain this excuse or justification language. The instructions for use of N.M.U.J.I. Civ. 11.2, state:

'This instruction should not be given unless the court holds as a matter of law that there is sufficient evidence of excuse or justification for the issue to go to the jury. Absent such evidence the 'per se' rule applies and is covered by instruction UJI 11.1.'

Navajo contends that under the law and under the facts in this case, instructions 18 and 19 should have been modified to conform to N.M.U.J.I. Civ. 11.2. See Stephens v. Dulaney, 78 N.M. 53, 428 P.2d 27 (1967); Hayes v. Hagemeier, 75 N.M. 70, 400 P.2d 945 (1963). The facts which would justify or excuse violation of the aforementioned statutes can be summarized as follows:

The wind was blowing and snow had drifted across the roadway from west to east. It was dark and visibility was not good. The snowdrift at the scene of the accident was 450 feet long and the Navajo truck had traveled into the drift from north to south for 250 feet before the truck suddenly jackknifed. The easterly edge of the drift at its greatest depth and the center of the drift was only eight to ten inches deep. The westerly edge of the snowdrift gradually increased from south to north until it got to a maximum depth of three and one-half feet, then gradually declined again to the north end of the drift. Gradual changes in elevation of the snow are not perceptible until a drift is entered, consequently, the depth of the snowdrift would not have been apparent to the driver. The accumulation of snow was not even apparent to the Whitfield vehicle approaching from the south.

The Navajo truck had encountered other drifts along the road prior to coming upon the drift which caused the truck to jackknife, but the Navajo truck had no difficulty driving through previous drifts. The drift which caused the truck to jackknife appeared to the Navajo driver to be identical to other drifts which he had successfully negotiated. The Navajo truck would reduce speed to about 35 miles per hour before entering a drift.

The Navajo driver, White, tried to stay in his lane but when the vehicle jackknifed suddenly and without warning the vehicle got away from him. The snowdrift caused the Navajo vehicle to jackknife. Brakes should not be applied in a snow bank and the Navajo driver did not apply his brakes. Under the circumstances an expert driver would have tried to drive through a snowdrift similar to the one which caused the truck to jackknife but there would have been no warning under such conditions that a jackknife was about to occur. If a vehicle unexpectedly encountered a depth of snow under these conditions, not even an expert could have avoided a jackknife....