71 P.2d 683 | N.M. | 1937
The appellee sued the appellants for killing a Shetland pony. From a judgment following a jury verdict for $625, this appeal was taken.
There were a number of assignments of error, but only two urged in this court: First, that there was no evidence to establish the negligence of appellants; and, second, that the evidence conclusively proves that the proximate cause of the killing of the pony was the contributory negligence of appellee.
If there is substantial evidence in the record to support the judgment, then it must be affirmed. There is substantial evidence to establish the following facts:
The appellee lives in the village of Oro Grande, N.M., and there operates a store in a building facing east at the west side of the highway. At the back of his store building (the front porch of which abuts upon the highway) is a corral in which appellee kept a horse and the pony that was killed. The gate to this corral was held shut by weights on a rope and in addition had a fastening. The pony could open the gate and did so when the horse was taken out, unless the gate was fastened. Appellee and his son, hereafter mentioned, knew the pony could open the gate and would get out and follow the horse when taken from the corral if the gate *515 was not fastened. On the day in question, appellee's son took the horse from the corral, leaving the gate held closed with the weights only; and had just brought it to the north end of the porch of the store, when the pony loped or trotted out into the highway from the south side of the store, coming onto the highway from between the store and some cars parked along the side of the highway south of it.
Appellant James C. Love, traveling salesman for appellant company, was driving a company automobile on this highway, one of the main state roads. There was evidence that Love was driving at sixty or sixty-five miles per hour. He neared appellee's store just as the pony loped or trotted directly across the road from the south side of the store building. The pony could not have been seen by Love as he drove the car down the road from the north until it had passed the side of the store and was almost on the highway. Love saw the pony and applied his brakes to avoid hitting it. The tires scraped the ground for a distance of twenty steps before colliding with the pony, and the car went seventy steps further before stopping. The pony did not see the car until almost against it, when he stopped, reared, and threw his head up; was missed by the radiator, but the edge of the wind shield hit and crushed his head. He was killed about the center of the highway, which is sixty or eighty feet wide, with a graveled surface in the center twenty-four feet wide. It was straight for a quarter of a mile north of Oro Grande to a mile south. There was nothing to prevent the driver from turning either to the left or right to avoid killing the pony, in so far as the condition of the road was concerned, as there was no ditch at either side.
There was thirteen cars parked along the highway at and south of the store, and one or two in front of it. The pony went between the cars parked south of the store and the store building, and passed south of the car or cars parked in front of the store, onto the highway, following or looking for the horse, which had just been brought around and tied at the north end of the store building porch by appellee's son. Instead of turning north, as the horse had done, the pony continued in a lope or trot directly east, starting to cross the line of traffic. Appellee testified that appellant could not have seen the pony until it was on the highway.
It is provided by subsection (b) of section 1 of chapter 118, N.M.L. 1933, among other things: "No bus or truck shall be operated at a speed greater than 45 miles per hour. Passenger automobiles may be operated at such speeds as shall be consistent at all times with safety and the proper use of the roads."
The jury was not instructed as to this statute, but the court advised them of section 11-803, N.M.S.A. 1929, which is as follows: "Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful and wanton disregard *516
of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving and upon conviction shall be punished as provided in section 61 [11-861] of this act." And the jury was properly instructed that a violation of this statute was negligence per se. Appellant Love testified that he was driving at from 40 to 45 miles per hour. There was testimony that he was driving at from 60 to 65 miles per hour and other witnesses testified that he was "speeding." There was sufficient testimony from which the jury could properly infer that Love violated the penal statute quoted and therefore was negligent; but that fact did not justify a verdict for damages unless such negligence was the proximate cause of the collision with the pony. Henderson v. Northam et al.,
Contributory negligence was not pleaded by defendants. They denied negligence on their part and alleged: "That if said horse was killed as alleged in paragraph III of plaintiff's complaint, that the killing of said horse was caused by the gross negligence of plaintiff in permitting said horse to run at large upon a public highway." Such denials of negligence and allegations of negligence of plaintiff are not a plea of contributory negligence. See Thayer v. D. R.G.R.R. Co.,
It thus appears that both contributory negligence and the doctrine of last clear chance were incorporated and submitted. Being unobjected to, this was the law of the case, Marchant v. McDonald,
In this situation it was for the jury to determine whose negligence was the proximate cause of the injury. Under the issues as submitted and from a survey of the testimony, we are unable to say that there was not substantial evidence to support a verdict for plaintiff, even though the jury might have thought that the plaintiff was guilty of contributory negligence in permitting the horse to be in a situation where it could go on the highway.
From all of the foregoing we conclude that the judgment must be affirmed and the cause remanded, and it is so ordered.
HUDSPETH, C.J., and SADLER, BRICE, and ZINN, JJ., concur.