Lead Opinion
The plaintiff brought this action to recover damages for the death of his son, a child about- 3i/á years of age, alleged to have been caused by the negligent operation of an automobile owned and driven by the defendant. The accident happened on May 15, 1948, between the hours of twelve noon and one o’clock, in the city of Santa Fe.- Thе case was tried to the court without a jury. It resolved the issues in favor •of the defendant and the plaintiff appeals.
The defendant (appellee) was driving northerly on Irvine Street in the City of Santa Fe. The day was bright and sunny.
Camilo Vigil, a witness for the defendant, testified that he was sitting on the front seat of the car driven by the defendant and that just prior to the accident he saw a little boy coming out of a store which was located on the west side of the street. Fie further testified, as follows:
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“Q. How did you know that anything had been hit, that a child had been hit? A. I thought that the car had struck the сhild because I saw him running out of the store.
“Q. I don’t understand what you mean, will you explain that? A. At the time we was coming in the car, and just before arriving to the store there was a little boy coming out of the store, and I don’t know whether he went across the street or not, but anyway when we went right about in line with the store then -is when I felt the bump.
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“Q. Now, when did you first know that a child had been struck? A. When we сame in line with the store.
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“Q. Did you see any other children besides this one that you talked about coming out of the store? A. No, sir, just the one.”
On cross-examination he testified:
“Q. Are you sure that he is not the child who came out of the store? A. I’m not sure because I didn’t see him right.
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“Q. The thing that made you tell Mr. Koury that you thought you had struck a child was the bump ? A. When I felt the bump and when I saw the little boy run out of the store, and I thought the child hаd run towards the street.”
The defendant testified that he did not see the child that was killed nor any other child on the street at or prior to the fatal accident. This testimony is so inherently improbable as to be unworthy of belief.
So far as the record discloses, the only blood and broken glass found at the scene of the accident were ten feet from the east line of the street, thus showing conclusively that the point of impact was approximately one foot from the middle of the street. The defendant’s explanation as to the broken glass from the front right head lamp of his car found (^) foot from the middle of the street is, that, it could have flown there. He testified: “Well, you take here now, when you hit a person, maybe the mоmentum of the car dragged him to there, or maybe the shatter of the glass could fly 10 feet, or when you hit a body or anything you hit, it isn’t going to fall right where you hit it, it could have really gone farther back.”
It is undisputed that the accident happened by the striking of the child with the right front head lamp of defendant’s car. However, there is a dispute as to the point of impact. The defendant claims that the child was from 3 to 5 feet from the east side line of the street. The city policeman who investigated the accident testified that he found a pool of blood and broken glass from the defendant’s right head lamp ten feet from the east line.
Physical facts and conditions may point so unerringly to the truth as to leave no room for a contrаry conclusion based on reason or common sense, and under such circumstances the physical facts are not affected by sworn testimony which in mere words conflicts with them. When the surrounding facts and circumstances make the story of a witness incredible, or when the testimony is inherently improbable, such evidence is not substantial. In State v. Armijo,
Plaintiff’s Exhibit No. 1 is a photograph of the street. Indeed the picturе demonstrates that there were no obstructions which could have prevented the defendant from seeing the child at a distance of more than 600 feet, had he been keeping a proper lookout for objects on the street. It was his duty to keep a lookout and actually see what was in the street that he was using, and a failure so to do constitutеs negligence on his part. Ryczko v. Klenotich,
“In order to keep a proper lookout, a motorist must do more, than merely look; it is his duty to see and be cognizant of what is in plain view or obviously apparent, and he is chаrgeable with seeing what he should have seen, but not with what he could not have seen in the exercise of ordinary care.
“Merely looking is not sufficient performance of the motorist’s duty to keep a proper lookout. It is his duty, unless some reasonable excuse or explanation for not seeing is shown, to see what is in plain view or obviously apparent, or the things which a person in the exercise of due care and caution would see under like or similar circumstances, and to be cognizant of them and utilize the information obtained to prevent injury to himself and others. He is not absolved from liability by a failure to see what he could have seen by the exercise of due diligence, but is chargeable with seeing what he should have seen, or that which is apparent or in plain view, or which he could have seen had he looked, or with knowledge of all that a prudent and vigilant operator would have seen.”
In Gregware v. Poliquin,
And in Bramley v. Dilworth, 6 Cir.,
Our laws require that all persons who drive automobiles on public highways within the State must do so in a careful manner. Section 68-501, 1941 Comp., provides in part as follows: “(a) The driver or operator of any vehicle in or upon public highways within this state shall drive or operate such vehicle in a careful manner, with due regard for safety and convenience of pedestrians * * *.•”
In Johnson v. Herring,
Upon the evidence presented by the defendant himself, we can only reach the conclusion that, if the defendant did not try to pass around the child when it was in the middle of the street, (where the broken glass and blood were found), without stopping his car, taking a chance of not striking it, then he must have failed to exercise that reasonable care of observing what was ahead of him in the street which 'would have caused him to discover the child’s peril in time to avoid the accident. In either case, because of his unobstructed view and unobstructed opportunity to freely drive his car upon any portion of the street, he was negligent. The findings made by the court on the issue of negligence are not supported by substantial evidence.
In reaching the conclusiоn as we do that the findings of the trial court are not supported by substantial evidence, we are not unmindful of the rule frequently announced by this court to the effect, “that it will not disturb the trial court’s findings where they are based upon substantial evidence to sustain such findings.” Such rule is in part founded upon the fact that the trial court has-the opportunity to see the witnesses and to оbserve their demeanor while testifying and therefore is in a better position to determine the weight that would be given to the evidence than are members of this court who do not have that opportunity. The rule, however, does not relieve this court of its duty to- examine the evidence and see whether or not it is substantial.
In Thuringer v. Trafton,
That language is applicable here. The judgment will be reversed and the case remanded to' the district court with a direction that it set aside its judgment, assess the plaintiff’s damages and enter judgment in his favor for the amount thereof. It is so ordered.
Dissenting Opinion
(dissenting).
The majority opinion picks out and re-, lies on the evidence most favorable to a reversal of the judgment instead of following the heretofore universal rule that we must view the еvidence in all its aspects most favorable to the judgment. The cases of Brown v. Cobb,
I believe the majority opinion should have stated the photograph of the street shows а vine on the yard fence immediately opposite the point where the child was struck, and also that there is a large telephone pole in the middle of. the sidewalk which immediately adjoins the street; and further that the car was stopped in 20 feet after the child was struck.
Had the majority followed the heretofore settled rule above mentioned, the fol- . lowing would have been the facts on which the case would be decided.
That the defendant was driving along the street on a clear day at a speed of between ten and fifteen miles per hour, with his car under proper control; that he stopped it 20 feet from the point of impact; that he was driving along the right hand side of the street, watching the street ahead of him; that he did not see the child at any time before the car struck it on the left side of the head.at a point between three and five feet from the right hand side of the street; that the child was last seen about fifteen minutes before the accident
No one saw the child in the street before it was hit, and how or when it got there is entirely a matter of speculation, conjecture and surmise, and the finding based on all or either is not supported by substantial evidence. Citizens Finance Co. v. Cole,
It was held in Cerrillos Coal R. Co. v. Deserant,
The case of Medina v. New Mexico Consolidated Min. Co.,
I do not believe any appellate court has held until today the mere fact an automobile collides with a pedestrian in a street raises a presumption of negligence. In fact, the rule is stated to be just the contrary. See Annotations in
In my research in this case I have kept in mind that no.one saw the child in the street before it was struck, that it is unknown how long it had been there, when it entered, or from what place it came. The only reported cases I have been able to find where comparable facts were present are the following: Gavin v. Bell Telephone Co.,
In some of these cases nonsuit was entered against the plaintiff, in others judgments were entered notwithstanding the return of verdicts for the plaintiff, while in the others, judgments on findings or verdicts in favor of the plaintiff were reversed and judgments entered for the defendants. The plaintiff was not allowed recovery by the appellate courts in a single instance and they hold the doctrine of res ipsa loquitur ■may nоt be invoked in such cases. My extensive study of this case convinces me that not a single reported case can be found where a judgment in favor of the plaintiff was allowed to stand where the pedestrian who was struck was not seen in the street by anyone before the accident. A number
In the Montana case, Johnson v. Herring, cited in the majority opinion, the child was seen in the alley 20 or 25 feet ahead of the truck immediately before it was struck by the truck. The trial court had directed a verdict for the defendant but its judgment was reversed with instructions to submit the case to a jury, not with instructions to assess damages as is done here.
In Ryczko v. Klenotich,
The case of Bramley v. Dilworth, 6 Cir.,
Gregware v. Poliquin,
By considering only the evidence most favorable tо the plaintiff, and then injecting the doctrine of last clear chance, adding a dash of the doctrine of res ipsa loquitur; indulging in surmise, conjecture and speculation, the majority-determine the defendant was guilty of negligence as a matter of law, reverse a contrary finding and judgment, and direct the trial court to assess the damages. As all of the cases I find on the subject hold the contraryj I dissent.