Williams v. Cobb

• Decision Date: 24 May 1977
• Docket Number: No. 2723,2723
• Citation: 1977 NMCA 60,90 N.M. 638,567 P.2d 487
• Parties: Dorothy WILLIAMS, Plaintiff-Appellant, v. Bill (William) COBB, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 487

567 P.2d 487

90 N.M. 638

Dorothy WILLIAMS, Plaintiff-Appellant, v. Bill (William) COBB, Defendant-Appellee.

No. 2723.

Court of Appeals of New Mexico.

May 24, 1977.

Benjamin M. Sherman, Sherman & Sherman, Deming, for plaintiff-appellant.

Edward E. Triviz, Las Cruces, for defendant-appellee.

OPINION

LOPEZ, Judge.

The plaintiff filed suit for damages and personal injury resulting from a collision at an intersection in Deming, New Mexico. The jury returned a verdict for the defendant and the trial court entered judgment accordingly. The plaintiff appeals. We reverse.

The plaintiff asserts reversible error with regard to several instructions which were given, and some which were refused, relating to the following issues: (1) contributory negligence; (2) sudden emergency; (3) independent intervening cause; and (4) the assumption permitted to a motorist traveling on a thoroughfare.

The record establishes the following: the collision between the plaintiff's and the defendant's cars occurred at the intersection of Spruce Street, a thoroughfare running east and west, and Iron Street, an intersecting street running north and south. There was a stop sign which was turned sideways on the northwest corner of the intersection; the sign was supposed to face north to stop traffic traveling south on the intersecting street, Iron Street. Just prior to the collision, the plaintiff was driving in an easterly direction at a speed of between 22 to 25 miles per hour. The plaintiff, a long time resident of Deming, was familiar with the street and knew that she was on the designated right-of-way. The defendant was driving his automobile in a southerly direction on Iron Street at a speed of 25 miles per hour. The defendant was unfamiliar with the community. The defendant did not see the stop sign because it was turned sideways so that only its edge was visible. Neither plaintiff nor defendant stopped at the intersection. The record reveals that the view at the intersection was partially obstructed, both cars entered the intersection at approximately the same time, neither at excessive speed, and the accident happened too quickly for either party to avoid the collision.

The question presented by this case appears to be one of first impression in New Mexico. The question is well summarized in 74 A.L.R.2d 242, 243 (1960), which annotates many similar cases. Therein, the question was stated as this:

"What effect, if any, does a missing, displaced, or obliterated stop sign, or a malfunctioning traffic signal, have upon the liability of a motorist for a collision at the intersection of an arterial highway, boulevard, or through street with an unfavored servient or secondary street or road?"

For clarity we will refer to Spruce Street, which is the thoroughfare, arterial highway or boulevard, as a "through" street, i. e., having no stop signs or traffic signals at the particular intersection. We will refer to the unfavored servient or secondary street as the "intersecting" street. We will address the appellant's last point first.

Assumption Permitted to a Motorist on a Through Street

The contention is that the court erred by failing to instruct the jury as to the assumption permitted to one traveling on a through street. The plaintiff tendered two instructions:

"If you find that Dorothy Williams was traveling on a through street and did not see whether a driver approaching the intersection with the through street did or would not stop for the through street, you must find that Dorothy Williams was not contributorily (sic) negligent. But if you find that Dorothy Williams was aware that the driver approaching the through street intersection was not going to stop at the "stop" sign before entering the intersection, you must find that Dorothy Williams had a duty to take steps to avert a collision and to take precautions commensurate with the dangers reasonably to be anticipated under the circumstances.

"3 Blashfield, Automobile Law and Practice Sec. 114.102 p 229"

"You are instructed that an automobile driver, with knowledge of location of stop signs, has a right to rely, when crossing intersection, upon the assumption that anyone approaching will observe same, and will not undertake to cross against them and need not anticipate that a driver will enter the intersection in violation of a stop sign.

"Mayfield v. Crowdus, 38 N.M. 471 (1934) 3-4 Huddley's (sic) Encyclopedia of Automobile Law (9th ed) sec. 154, 1 Blashfield's Cyclopedia of Automobile Law Sec 24 (1932) p. 68, 2 Blashfield, Cyclopedia of Automobile Law and Practices Sect. (sic) 1028 at P. 305 & 306"

There exists a general rule of law applicable to this case. In a factual context quite similar to the case at bar, the Louisiana Court of Appeal for the Fourth Circuit considered the general rule. In the case of Ory v. Travelers Insurance Co., 235 So.2d 212 (La.App.1970) the court said:

". . . It (the Louisiana Court of Appeal for the Third Circuit in Fontenot v. Hudak, 153 So.2d 120 (La.App.1963)) observed that had the stop sign been standing, clearly plaintiff would have been entitled to recovery, citing Martin v. Barros, 142 So.2d 171 (La.App.3d Cir. 1962); and Hernandez v. State Farm Mutual Ins. Co., 128 So.2d 833 (La.App.3d Cir. 1961). The court then went on to say:

'The general rule of law in a case where a stop sign has been misplaced, improperly removed, destroyed or obliterated is set out in 74 A.L.R.2d at pages 245 and 246, and reads as follows:

"Where the boulevard, through street, or arterial highway has been properly designated and appropriate signs have been erected, it ordinarily has been held that the preferred status of the highway is not lost merely because a stop sign is misplaced, improperly removed, destroyed, or obliterated. . . .

"The rule that a motorist driving on an arterial or preferred road protected by stop signs is entitled to assume that the driver of a vehicle on an intersecting servient street will obey the law and stop or yield the right of way has been held not rendered inapplicable because a stop sign which ordinarily should face the motorist on the side street has been misplaced, destroyed or improperly removed. But the right to rely on the assumption may be lost where the driver on the arterial road is not himself exercising due care while approaching or crossing the intersection, and motorist (sic) upon arterial highways will be held liable, of course, for collisions resulting from their failure to exercise due care toward traffic on the intersecting road." ' " (Emphasis added)

Several cases have taken exception to the general rule, one of which is relied on by defendant. Schmit v. Jansen, 247 Wis. 648, 20 N.W.2d 542, 162 A.L.R. 925 (1945). But the Schmit case is distinguishable. In Schmit the court found evidence that each party used the same degree of caution and the accident occurred as each party, using reasonable care, relied on presumed rights-of-way. The defendant in Schmit had the general right-of-way. In the instant case the plaintiff was not only on the through street, but she also had the general right-of-way. We proceed to explain this distinction.

We note that there exist two distinct rights-of-way on the highways of New Mexico. The first is often referred to as the general rule or statutory right-of-way. This is exemplified by § 64-18-27, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2, 1972) which states:

"Vehicle approaching or entering intersection. (a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.

"(b) When two (2) vehicles enter an intersection from different highways at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.

"(c) The right of way rules declared in paragraphs (a) and (b) are modified at through highways and otherwise as hereinafter stated in this article (64-18-27 to 64-18-31)." (Emphasis added).

For clarity we will refer to this as the general right-of-way.

The general right-of-way applies only when neither street at an intersection is a through street. Bunton v. Hull, 51 N.M. 5, 177 P.2d 168 (1947). The general right-of-way can be modified as provided by § 64-18-27(c), supra. The modified right-of-way is often referred to as a modified, designated, controlled, or preferential right-of-way. A stop sign creates one such right-of-way, as stated in § 64-18-29, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2, 1972):

"Vehicles entering stop or yield intersection. A. Preferential right of way at an intersection may be indicated by stop signs or yield signs as authorized in the Motor Vehicle Code.

"B. Except when directed to proceed by a police officer or traffic-control signal, every driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop as required by section 64-18-44C and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on the highway as to constitute an immediate hazard during the time when the driver is moving across or within the intersection." (Emphasis added)

For clarity we will refer to this as the preferential right-of-way.

Several cases follow the Schmit case. Schmit considers an intersection where the stop sign has been destroyed, obliterated, or rendered useless, as an uncontrolled intersection. The analysis then looks to the general right-of-way to determine if an unavoidable accident has occurred. See, e. g., Austinson v. Kilpatrick, 105 N.W.2d 258 (N.D.1960); Hammon v. Brazda, 173 Neb. 1, 112 N.W.2d 272 (1961).

Fortunately, this Court does not need to choose between two apparently conflicting points of view because the plaintiff in the instant case had both the preferential and general rights-of-way.

Although we believe that the better view is that the preferred status of a through...