*4 ing being hut alleged below cause WOOD, J.,C. concurs. aggravation. starting the claimed Before COWAN, J., dissents. walk, leg she shook her “real hard” COWAN, Judge (dissenting). stomped” go “kind of that “I could on down the hill.” It is noted that agree majority that with the I cannot fracture, did not know of the testimony “to Dr. McBride’s was sufficient being by ordinarily only revealed inju- aggravated on create an issue of fact x-ray. ry thereof.” and the extent majori- correct, in the is not as stated weakness of It the doctor’s belief in ty to an opinion, the doctor testified initial was first evidenced percent plaintiff’s when fifty replied he question to a reason- to “Well, probability plaintiff’s condition, of a able medical I The cause by aggrava- trial, think so.” He the time then testified to must be established testimony. Hatfield, walking: tive factors in addition to the medical Alvillar v. fall; twisting motion (Ct.App. her first time of impaction 1971). of bone into socket at “ fall; time of sitting the initial * * on the unquestioned The rule is hut; warming weight bench at the damages the evidence show must bearing; her trip hospital; bus to the Taos certainty.” v. Elk reasonable Bokum the fitting Taos; pin cast and the ins, (1960). 355 P.2d 137 inserted in the bone in Oklahoma. that, generally “While be true When asked to define the relative contri- testimony di speaking, if a witness’ bution of ag- these various factors to the giv rect examination conflicts with gravation used, by express he either words cross-examination, en him on it is for of his own or response to their use when, all, jury he has to decide if at questions, phrases impossible such as: Kan., truthfully, testified Armishaw v. separate; hard distinguish; you can’t 1011; Or. 260 P. Am.Jur. it; you do tell; they can’t separa- are not 863; yet have Witnesses that rule can § ble; I know; way wouldn’t there is no explains no application the witness so if *5 tell; arbitrary; it’s purely a matter of prior his testimony as to leave facts speculation. Even predicat- when he once matter to which he mere testifies ed opinion his expe- to some on extent his conjecture, possibility guess. or of * * *’ rience, he speculate added “But I on Simmons, that.” 213 Washburn v. 946], 255 P.2d 325 P.2d Or. The [323 rules of law governing this case (1958). [Emphasis added] are: it plaintiff’s “Hence is that where the “The extent of the can be upon case testimony rests aof wit- established testimony pre-ex- that the ness further whose examination so ex- isting condition has aggravated by been ” plains * prior * or qualifies testimony his as a stated percentage amount. to leave the to which he Morris Rogers, v. 80 N.M. testifies P.2d fact conjechire, possibility, matter or 863 (1969). guess, testimony as will be construed * * * “The defendant is liable probative- a whole to be lacking in n onlyfor ** and jury. as not to make a force the burden proving with reasonable circumstances, defendant, In such as certainty the extent agg'ravation of the law, a matter is entitled to the direc- plaintiff.” on the Hebenstreit v. Annot., tion a verdict.” 66 A.L.R. Atchison, Topeka Co., Ry. & Santa Fe (1930). [Emphasis added] 336 P.2d (1959). appraisal A fair entire of Dr. McBride’s “Difficulty proving ag- extent of testimony, proof plaintiff’s which the * * * gravation justify does not damage beyond rests, convinces me non-application of the rule that insufficient, doubt that his evidence is as prove must injury that defendant in- law, jury. matter of case for the to make a * * * flicted. aggra- extent of defendants, directing In a verdict for the * * * vation aof pre-existing condi- vague- the court said: “There is too much tion must proved by be plaintiff. ness, jury and I think submit ” * * * Darwin, Martin v. submitting pure would basis 200, 420 P.2d 782 (1966). speculation conjecture. To there is and me proof aggrava- lack to the extent of proving burden of with reasonable injury.” agree. of the tion I certainty the causal connection is on the plaintiff. Brumlop, goes beyond Woods v. This case mere “contradic- (1962). testimony” to be tions resolved

580' testimony, after The doctor’s finder.

fact undermined testimony, so

his initial just contradic- it became not the latter but, no evidence evidence,

tory probatively,

at all. defend- circumstances,

Under such to a law, entitled

ants, as a matter of the judgment

directed verdict ma- affirmed. should be

trial court therefore, I, dis- jority feel otherwise

sent. BROCK,

Nancy Administratrix S. Deceased, Brock, Terry Frank Estate Plaintiff-Appellant,

v. Co., Sears, Roebuck &

Annie GOODMAN corporation, Defend a New York ants-Appellees.

No. 758. Appeals of Mexico. New Court McCary, Keleher, Dennis M. Michael L. 11, 1972. Feb. McLeod, Albuquerque, Keleher & 23, 1972. Certiorari Granted March plaintiff-appellant. Rodey, Dickason, John,

Robert M. St. Sloan, Robb, Akin Albuquerque, & for de- fendants-appellees.

OPINION SUTIN, Judge. summary judg-

This is an from suit granted defendants in a ment resulting wrongful from vehicle death accident. reverse.

We not defendant Annie is Goodman party appeal. to this following: supports The record Goodman, August hus- Tom On Annie, 6-ply purchased four band of new tires from manufactured Sears by Armstrong. put old Goodman’s Sears in- tires mounted and tubes the new