Williams v. Neff

• Decision Date: 16 June 1958
• Docket Number: No. 6378,6378
• Citation: 326 P.2d 1073,1958 NMSC 71,64 N.M. 182
• Parties: W. O. WILLIAMS, Plaintiff-Appellee, v. R. L. NEFF, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1073

326 P.2d 1073

64 N.M. 182

W. O. WILLIAMS, Plaintiff-Appellee, v. R. L. NEFF, Defendant-Appellant.

No. 6378.

Supreme Court of New Mexico.

June 16, 1958.

Hartley, Buzzard & Patton, Clovis, for appellant.

Emmett C. Hart, Tucumcari, for appellee.

COMPTON, Justice.

This is an appeal from a judgment for appellee, plaintiff below, for personal injuries and property damages sustained by him, allegedly resulting from appellant's negligent operation of an automobile. The cause was tried to the court on the issues of negligence of appellant and contributory negligence of appellee. Appellee's injuries were serious; that amount of the award therefor is not questioned. The pertinent findings read:

'(11) That the sole proximate cause of the collision of the defendant's automobile with the plaintiff's automobile and with the plaintiff was the failure of the defendant to stop his car under the existing conditions, to observe where he was driving, and failure to have his car under proper control.

'(12) That the defendant was negligent in the operation of his car and the defendant's negligence was the sole and proximate cause of the injuries sustained by the plaintiff and damages to the plaintiff's car.

'(13) That the plaintiff was acting as a reasonable and prudent person under the circumstances and was free of contributory negligence.'

While this is a borderline case on the facts, we find substantial support for the findings. The collision occurred on State Highway 86, a two-lane highway about 5 miles north of McAllister, New Mexico. The parties had been traveling the same direction. Appellee was accompanied by his wife, who was riding in the front seat with him. It was exceedingly windy and the dust was blowing. Dust was so dense at times, a driver could barely see the road ahead. For the latter reason, appellee had previously stopped to permit the dust to clear. On that occasion, when he attempted to start his automobile, he found it was disabled in some manner. He hailed a passing motorist who assisted him in starting it by pushing. After traveling a few miles, another blinding dust cloud suddenly moved in, completely obscuring his vision. He promptly brought his automobile to a stop. When his vision cleared, he found his automobile was partly on the paved portion of the highway. When he tried to start it, the motor again failed to function. He put it in gear and used his starter in an effort to move it off the highway but was able to move it no farther than the right shoulder; the left wheels remained on the asphalt improved portion. He tried to push it off but without success. Being unable to clear the highway, he turned his lights on. Finally, thinking that possibly the batteries had recharged sufficiently to move it, he went to the driver's side to enter and as he opened the door, appellant, approaching from the rear and accompanied by one Hawkins, ran into him and his automobile, resulting in the injuries and damages alleged. Appellant did not see appellee nor his automobile prior to the collision. His version of the incident is as follows:

'Q. And what distance were you from Mr. Williams' car before you hit his car? I mean before you saw his car. A. What distance?

'Q. How far? A. I never saw him until he done hit him, I done hit him before I saw him.

'Q. And was that because of the sand? A. That certainly was.

* * *

* * *

'Q. You really couldn't tell unitl you stopped and got out. A. I was just watching the white line; if I looked up I couldn't see anything. Mr. Hawkins was watching outside of the road, and * * *

'Q. You were watching * * * A. If I looked up in the sand, you couldn't see nothing.

'Q. You were watching the middle lane? A. Yeah, that's right.'

Appellant seriously contends that the court erred in finding that he should have stopped his automobile. We see no error in the finding. A motorist must exercise care commensurate with the situation confronting him. Silva v. Waldie, 42 N.M. 514, 82 P.2d 282; Chandler v. Battenfield, 55 N.M. 361, 233 P.2d 1047. If his vision becomes completely obscured, the situation certainly imposes the duty to stop. Coe v. Hough, 42 Ariz. 293, 25 P.2d 547; Trainor v. Interstate Const. Co., 187 Wash. 142, 60 P.2d 7; Townsend v. Armstrong, 220 Iowa 396, 260 N.W. 17.

The contention is made that appellee was negligent per se by walking onto the paved portion of the highway...