*1 consequence view change announced our con- guilty whether the
tributary matter for was a
jury, law. as a matter not to be declared rehearing
The motion for will be denied.
It Is So Ordered.
LUJAN, J., C. and McGHEE and
COMPTON, JJ., concur. P.2d JONTZ, Plaintiff-Appellee, F.
Vernon ALDERETE, Intervenor-Appellant,
Leo Defendant.
No. 6227.
Supreme Court of New Mexico.
March 1958.
Rehearing Denied June 1958. Moise,
Irwin S. Sutin, Lewis R. L. J. Albuquerque, appellant, Leftow> R0dey, Dickason, Sloan, Akin Robb, & Albuquerque, for appellee.
KIKER, Justice.
16á impact. plaintiff alleges p. m. 7:15 May 3, 1957, at about
On actually his auto skidded some his car Jontz, 33}^ plaintiff, Vernon necessary feet subtract from Albu- since it is city Avenue east Fruit defendant, length equal skid mark total Mexico. querque, New *2 wheel base of car. north his was Al- intervenor, Leo The Street. Seventh especially Conflict evidence exists defendant, was derete, of the a co-worker speed parties as to the at which the were at the by the being home defendant driven plain- traveling. Defendant states that the day. working end tiff going did not think that was more he entering per 20 than miles hour when the Street inter- and Seventh Fruit Avenue per intersection 10 at the and miles hour traffic are no right angles. There at sect impact. point Plaintiff now believes this the and intersection controls at this wrong. expert estimate An witness stipulated to per hour as 25 miles limit is plaintiff for the vehicle stated that if the parties. the traveling per 10 at the at miles hour sustained, each collided and two autos The point impact traveling it must have been wheel and corner and damage on the front per at 35 about miles the hour when brakes plaintiff’s car right rear. The on the applied. plain- were appeal In his brief the directly im- the went north after turned and argues tiff there is substantial evi- proceeded to the defendant’s car pact. The traveling that he 20 dence between and intersection, over the corner of northeast per ap- 25 miles hour when the brakes were picket a small through sidewalk and the plied. fence. first defendant saw the other car immediately preceding As the events to when was about 15 20 the to feet collision, in there is some conflict from the intersection and the defendant was plaintiff glanced to the evidence. The about 15 from feet the intersection. The when he could see around right at a time police told a officer defendant that he was and a distance 100 to the corner for per going 30 miles hour. The defendant’s to glanced to the left and then feet. He car left marks on street but no skid lengths again. He car right was two marks.- when from the crosswalk or about feet brought approaching against Plaintiff suit at the defendant’s car defend- he saw seeking ant to for slightly greater damages distance from the inter- recover his ap- auto as a result of the than he was himself. Plaintiff collision. The section de- filed an in plied causing brakes the car skid. fendant answer his denial and an contributory skid marks measured feet affirmative defense of negli- property- Northwest, and counterclaim for Seventh Street gence and a Al- complaint buquerque, damage. The intervenor filed a and had driven said vehicle per- into seeking damages passed and intervention the center said in- tersection, injuries. setting Plaintiff answered a distance sonal of nineteen feet joint ven- from up affirmative defense of the extension west curb- ture, Street, line of contributory negligence and unavoid- Seventh when De- fendant, Benjamin Padilla, traveling able accident. a northerly direction, his 1951 drove and its of fact made Ford against right automobile front conclusions that neither of law to effect car, fender of having the Plaintiff’s negli- nor the defendant proceeded the intersection a dis- into gent and accident was unavoidable that the tance of feet nine from the extension plaintiff’s complaint, and dismissed the the south curb-line of Fruit Avenue. counterclaim defendant “2. That the vehicle en- Plaintiff’s complaint intervenor in intervention. The tered prior entry intersection appealed. therein of the Defendant’s vehicle. As appeal, his inter- first *3 Intervener, “3. That the Leo Alder- venor-appellant finding of fact contends the ete, was riding guest as a in Defend- plaintiff-appellee the trial that court ant’s place. automobile at said time and easterly his drove in car the intersection “4. by stipulation That of counsel support ahead of the not defendant does pages 44 45 January, and of the 1955 judgment the conclusions law and the Insurance Law intro- were Journal appellee based thereon that the de- and the duced into evidence. fendant negligent. both not “5. That the in the area limit The following findings court made the in which the accident was at occurred fact and conclusions of law: twenty-five that time per hour. miles Findings Fact “Court’s “Court’s Law Conclusions of “The finds to be: the facts “The a matter of Court concludes as “1. That Plaintiff, Vernon F. law that: Jontz, 3, 1955, on May his was Defendant, “1. 1951 in easter- Chevrolet automobile an prem- negligent was not in the ly direction on Fruit Avenue North- ises. City Albuquerque, west in New Mexico, Plaintiff, Jontz, “2. doing and while so entered the F. Vernon premises. Avenue was not in negligent intersection the said Fruit 166 course, expected “Of unavoidable. the trial court is The accident
“3. required and to decide and find what Plaintiff, complaint of the “4. The are, the controlling facts of a case Defendant Counterclaim of in order It is not judgment. to render Leo Complaint Intervention of expected incumber that will the court dismissed.” Alderete should be the record with and trivial useless that contention agree We with the af- findings, which, made, if would not upon findings of fact are not sufficient fect the outcome. we intend Nor do negligence. which to base a conclusion say simply that winner designating the would we such the evidence of record Were of the suit ‘ultimate deciding is that with the order remand case true, fact.’ but may In one sense it be sufficient findings be corrected to be in the in the sense in which used it was in order purpose, the case retried or Fraser Savings Case v. State [Fraser sufficiently. develop the facts Bank, 340, 592], ‘ulti- N.M. 137 P. mate facts’ and con- means those basic following cases illustrate trolling necessary facts the facts to be found may properly done when which be order to law to intelligently apply support judgment. do found not wherein an The case The court N.W.2d on findings of it In Naffke v. “Before a is appeal, based must 63, 65, the court said: involved reversed that award for the trial court.” judgment Naffke, conclusion find divorce support can part support be upon which Minn. sustained proceeding 468, made. judg- them and stated in court’s its conclusions specific enough to enable this court to essential or review as [354] those its decision on duty Morrow v. 200 P. render determining which it stands.” to make in the case judgment. Martinez, facts, it is the same reached, grounds Or, of the which N.M. trial as made as to finding was because no ment In this case the concluded party. A of either financial status party neither was negligent but the *4 fact neces- point was an essential this on findings support do not this conclusion. proper to a conclusion as sary reach to Appellee they contends that do but in so award. urging he makes constant references the to 121, Lueras, testimony find 34 N.M. to elements v. the which Apodaca he con
In r 199, findings court tends lowe made no find that the are 197, not lacking in. the P. Quarries, reversing In In Tobin that Sundt v. whatever. 50 N.M. ing of fac-t 684, 686, 175 P.2d court said: A.L.R. case, the we said: complete A of fact must be unanswered several questions factual raised itself, by the within to conflicting reference without evidence. Without an answer testimony.” questions to these of impossible fact it is to reach any conclusion as rights contradictory The record much contains parties. the This will originally not vehi- evidence at which the as to the questions determine the of fact a case. they cles were the traveling when entered Such function lies entirely prov- within the findings intersection. are silent ince of the trial court. Were evi- the im- they this as on such are other dence of record such toas enable lower the portant points way which as to right court to incomplete correct these findings, duty parties entitled, the respective the case would be remanded with direc- party care, manner in which each or the tion that the error be remedied. Careful operating his auto. study of the record indicates that there was points it findings such on these Without upon no evidence which findings further court impossible to conclude as did the is could be made. negligence and was no that below that there It is therefore ordered that the cause be unavoidable. accident remanded for a new trial in order that purpose of this Court to sift It is not the may sufficient facts taken be in evidence attempt an to de- through evidence in enable proper findings of fact to made be conclu- support what facts termine and conclusions of law to be entered. Findings by below. sions reached the court It is so ordered. appellate required prevent
of fact are fact. trier acting court from as GALLEGOS, V. District Judge, con- J. Apodaca Lueras, supra. curs. ap- appeal points In his next two COMPTON, J, dissents.
pellant where contends that LUJAN, J.,C. not participating. an negligent both are and the defendant is resulting their accident from McGHEE, (specially concurring). Justice appellant is entitled not unavoidable and the The conclusions neither ap- plaintiff when to recover from defendant negligent nor should be proxi- damage were injuries and pellant’s fact, findings as as treated well as the by negligence. mately caused wherein it is stated the one collision was an accident. unavoidable have stated We fact, not, however, agree I incomplete. trier do with them. fact are sitting jury, left shows collision was as the record caused this case *5 drivers, or both and there negligence one opinion support my a
is no accident. this was an unavoidable judgment be reversed and re-
This should jury a trial a or
manded for before new judge.
another by Padilla’s
If the collision was caused could intervenor
negligence then the alone statute, but guest because
not recover
if was it caused concurring negligence or the judgment should then plaintiff.
go against the I reasons alone concur in the above
For judgment. reversal P.2d 367 Mexico, Plaintiff-Appellee,
STATE of New Criqui, Pauline T. BAIZE and
Warren Defendants-Appellants.
No. 6375.
Supreme of New Mexico.
June 1958.