Wilson v. Wylie

• Decision Date: 19 December 1973
• Docket Number: No. 1066,1066
• Citation: 518 P.2d 1213,1973 NMCA 154,86 N.M. 9
• Parties: Melvin H. WILSON, Personal Representative and Administrator of the Estate of Gregory Lee Wilson, Deceased, Plaintiff-Appellee, v. Kenneth Wayne WYLIE and Claude B. Wylie, Sr.,Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 1213

518 P.2d 1213

86 N.M. 9

Melvin H. WILSON, Personal Representative and Administrator of the Estate of Gregory Lee Wilson, Deceased Plaintiff-Appellee, v. Kenneth Wayne WYLIE and Claude B. Wylie, Sr.,Defendants-Appellants.

No. 1066.

Court of Appeals of New Mexico.

Dec. 19, 1973.

Certiorari Denied Jan. 8, 1974.

Joseph E. Roehl, James A. Parker, Modrall, Sperling, Roehl, Harris & Sisk, Knight & Sullivan, Herbert L. Cushing, Albuquerque, for defendants-appellants

Charles G. Berry, Marchiondo & Berry, P.A., Albuquerque, for plaintiff-appellee.

OPINION

LOPEZ, Judge.

Defendant Kenneth Wylie was the operator of an automobile which struck and killed plaintiff's decedent, a minor 7 years, 10 months old, who was riding a bicycle at the time. The trial court, sitting without a jury, awarded $57,000.00 for the present worth of the continued life of decedent and $10,000.00 for loss of society.

The defendants raise the following points for reversal of the judgment: (1) substantial evidence of proximate cause; (2) contributory negligence of decedent; (3) contributory negligence of decedent's parents, including the plaintiff herein; (4) excessiveness of the award of $57,000.00; (5) failure of the trial court to consider mitigating circumstances when making its award; and, (6) the award for loss of society.

We affirm in part and reverse in part.

(1) Substantial evidence of proximate cause.

The trial court found there was no evidence of brake failure prior to the accident. The defendants claim that the accident was caused by the unexpected failure of the brakes on the left side of the car to function properly at the time of the accident. They argue that the alleged defect caused the car to veer to the right resulting in the collision. Relying on skid marks showing that the automobile did veer slightly to the right, they conclude that the trier of fact is bound by physical evidence tending to support their theory. See Ortega v. Koury, 55 N.M. 142, 227 P.2d 941 (1951); Sanchez v. Public Service Company, 82 N.M. 752, 487 P.2d 180 (Ct.App.1971), rev'd 83 N.M. 245, 490 P.2d 962 (1971); Bolen v. Rio Rancho Estates, Inc., 81 N.M. 307, 466 P.2d 873 (Ct.App.1970). These cases, as cited by defendants, involve situations where physical evidence directly contradicts oral testimony by a witness, rendering the oral recollection of the witness inherently improbable. This is not the case here. Rather, it is a case of conflicting inferences to be drawn from the undisputed evidence. One could infer brake failure from a skid mark gradually veering to the right. On the other hand one could infer that the car had a natural tendency to veer when skidding at high speeds. The trial court, in accepting the latter inference, was no doubt influenced by the following competent testimony: that the car tended to the right when braked at speeds above 60 miles per hour; that the car was being driven at 80 miles per hour immediately prior to the collision; that road tests performed subsequent to the accident revealed no defect in the automobile's braking mechanism; that an examination by the investigating officer immediately after the accident revealed a firm brake pedal, no brake fluid leakages and no brake defect; and that if the brakes on the left side had completely failed, as defendant claims, the car would have gone into a violent spin, instead of gradually veering to the right. Even if this court was disposed to hold that a person driving 80 miles per hour in a residential area has not proximately caused a collision with a bicycle rider because the car failed to skid in a straight line, we still would accept the trial court's finding. From the evidence, the trial court could have inferred that defendant's brakes worked properly, considering the speed. This court will not review the facts, weigh them and consider inferences contrary to those reasonably drawn by the trial court. Jones v. Anderson, 81 N.M. 423, 467 P.2d 995 (1970); Kerr v. Schwartz, 82 N.M. 63, 475 P.2d 457 (1970).

(2) Contributory negligence of decedent.

Defendants advance a negligence per se argument in respect to decedent, claiming that he violated §§ 64--19--5(a), 64--18--8(a), 64--18--13(a)(2), 64--18--27(b), 64--18--29 and 64--18--44, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2), in addition to a claim that he failed to keep a proper lookout and exercise due care. The first three statutes require bicycles and other vehicles to proceed on the right side of the roadway. The other three relate to stop signs and rights-of-way.

The accident occurred at the intersection of Chelwood, a north-south street, and Menaul, an east-west street. The trial court found that decedent was proceeding in a southerly direction on Chelwood at the time of the accident. The Wylie vehicle was traveling in an easterly direction on Menaul. Even if we accept defendants' contention that decedent was operating his bicycle on the left side of Chelwood in violation of the statutes alluded to, we must uphold the trial court's finding of absence of contributory negligence.

In Martin v. Gomez, 69 N.M. 1, 363 P.2d 365 (1961), the defendant driver, at the time of the accident, was concededly in violation of § 64--18--8, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2), relied on here by defendant. The court in Martin stated:

'* * * It may be conceded that the defendant violated the provisions of the statute and the pertinent city ordinance; yet, this fact does not resolve the decisive question of causation.

'Granting that the defendant violated this statutory mandate, nevertheless, the evidence in this case relative to a causal connection between the statutory violation and the injury is not such as would have justified that trial court in ruling as a matter of law that the violation was the proximate cause of the injury. Consequently, the trial court was correct in leaving the issue of causation to the jury.'

That the same rule applies in cases dealing with contributory negligence is clear from Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967). Here the evidence sustains an inference that the collision would not have been avoided even if the decedent had been obeying the statutory mandates relating to traffic flow. The violation of the statutes, if any, did not even cause or contribute to the accident in fact. Causation, at best, was a question for the trier of fact.

As to the statutes relating to stop signs, there was no proof whatsoever that decedent failed to stop as required before crossing Menaul. No witness saw him when he initially entered the intersection. Thus, defendants have failed to carry their burden. Realizing this, defendants argue that decedent, even if he did stop, failed to yield to the Wylie vehicle. The rule on the requirement to yield is stated in Brizal v. Vigil, 65 N.M. 267, 335 P.2d 1065 (1969), as follows:

'Consequently, * * * (the plaintiff) having entered the intersection at such interval of time and distance as to safely cross ahead of the vehicle approaching from the east, had its driver been exercising due care, the statute secured to him the prior use of the intersection.'

If one who enters an intersection after heeding a stop sign is hit by a vehicle greatly exceeding the speed limit, the issue of whether he is contributorily negligent is again for the trier of fact.

Finally, defendants allege a breach of the common law duties mentioned above. The only testimony not discussed previously, which defendants rely upon to support this contention, is that of one of the passengers in the Wylie vehicle. The witness testified that the decednet was looking straight ahead as he proceeded in a direction perpendicular to the movement of the automobile. We think that this testimony, even if believed, would not require a finding of contributory negligence as a matter of law. The direction in which the decedent was looking immediately prior to impact sheds little, if any, light on the crucial question of what his actions were when he entered the zone of danger. Since no one saw decedent until after he was in imminent danger, the question was, at best, for the trier of fact.

(3) Contributory negligence of decedent's parents.

Defendants allege that, '* * * both of decednet's parents were contributorily negligent in failing to instruct the decedent about crossing the intersection where the accident occurred, or in failing to restrict him from riding his bicycle in the intersection, and in failing to know of his whereabouts on the afternoon of the accident.' We can only conclude that decedent had a right to be in the intersection at the time of the accident. See § 64--19--2, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 2).

Defendants rely upon Foster v. United States, 183 F.Supp. 524 (D.C.N.M.1959), aff'd. 280 F.2d 431 (10th Cir. 1960). That case is helpful here because it recognizes the rule that parents are not required to watch their children every minute of the day. However, the fact that the court in Foster held the parent contributorily negligent is of no avail to defendants here. The court in Foster was faced with a substantially different fact situation and was resolving the issue sitting as a trier of fact. Here the defendants have the burden of proving contributory negligence as a matter law.

We find the case of Reardon v. Wilbur, 441 Pa. 551, 272 A.2d 888 (1971), more persuasive. There a nine-year-old pedestrian was struck at a busy highway intersection. The court stated:

'* * * (T)he mere presence of a child of tender years on the street unaccompanied or unguarded is insufficient to establish parental negligence as a matter of law. Dattola v. Burt Brothers, Inc., 288 Pa. 134, 135 A. 736, supra.

'It is not negligence, as a matter of law, for parents to allow their nine-year-old children to go unattended outside the home * * *. Nor is it alleged that the father knowingly permitted her to cross the street at a place of danger. * * *'

Also, in Payne v. Kingsley, 59 Ill.App.2d 245, 207...