Pavlos Ex Rel. Pavlos v. Albuquerque National Bank

Pаvlos, in Catherine PAVLOS G. Arnold dividually and next friend and as mother Pavlos, Coun Plaintiffs of Christina ter-Defendants, Appellees, BANK,

ALBUQUERQUE Execu NATIONAL Rebecca Estates Bernard Brint and tor of int, Counter-Claim Br Defendant and Appellant. ant, BANK,

ALBUQUERQUE NATIONAL Ad ministrator the Estate Claire Brint, Deceased, Plaintiff, PAVLOS,

Arnold G. Defendant.

No. 612. Appeals

Court of of New Mexico.

June 1971.

The driver Pavlos car had ob- served car the Brint when it first crossed into the lane of travel of the Pavlos car. The slowing driver the Pavlos car started his vehicle right. and moved to the The at, collision between the cars occurred slightly of, the edge west western of the lane of travel for southbound vehicles. The point impact Pavlos car was the front, left point on the Brint cаr the impact doorpost was at the between the right-hand front and back on the doors of the car. happened

The in daylight. accident “hilly.” road straight was but The road dry. surface was All witnesses who testi- point windy. fied on the said it was injuries Mr. and Mrs. Brint died from suffered in Brint the collision. Mrs. Klecan, Roach, Eugene E. T. James Julius driving. stipulated It was that Mr. Wollen, Albuquerque, appellant. M. for Mrs. Brint were the owners of car. Berry, Puccini, Jr., L. Mc- Charles O. G. non-expert opinion Exclusion testi- Atee, Berry, Albuquerque, & Marchiondo mony. appellees. attempted present Defendant

OPINION through Teague, the witness that wind con- ditions caused Brint vehicle to swerve WOOD, Judge. path highway across the into the of the appeal automobile accident attempt qual- Pavlos made car. No case (1) involves the exclusion non- ify Teague expert as an on wind conditions expert opinion testimony; (2) a directed or as to the of wind the Brint effect against verdict defendant on the issue opinion non-expert. car. His asked liability; and a directed (3) against verdict the non-driver co-owner of the car who was issue, presenting this defend present in the the accident oc- may argues non-expert ant appeal curred. The judgment agree. be received in certain instances. We favor of Catherine Pavlos. Cooley, State 140 P. L.R.A.,N.S., holds that where (1914) The Pavlos proceeding vehicle was descriptive language inadequate to con southerly direction within its lane of travel. vey precise jury, or the facts approaching vehicle was issue, bearing descrip of the facts Pavlos vehicle from the south. The Brint necessity vehicle tion must al coming of the witness observed across the highway approximately until by opinion. it was lowed supplemented five feet to be lane of travel Pavlos See also car. This N. Y. Life Skala v. Ins. maneuver the Brint car was in a normal N.M. 172 P. As stated in manner; is, erratically. Padgett The Brint v. Buxton-Smith Mеrcantile Com vehicle pany, then back proper moved into its (10th 1958), 262 F.2d 39 Cir. cert. lane, again appeared what to be in denied 365 U.S. S.Ct. 5 L.Ed.2d “ * normal diagonally manner. It then non-expert swerved : all opin highway. across the impression ion and ‍‌‌​​‌​‌​‌‌‌‌​‌‌‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌‌​​​​‌​‌​​‌​‌‍competent evidence is necessary if appropriate repro- It is received, After the above evidence was knowledge duce the witness’ pertinent defendant tendered the following n facts. and answer: “Q. Teague, upon Mr. based you what apply Some of New Mexico decisions scene, you observed there at the and what ing non-expert opinion this rule are: State experienced way had of weather Chavez, 274, (1966) 77 N.M. P.2d factors, conditions and all other and based —experienced lay to witness testified as your upon prior driving experience, do users; reaction of drug narcotics State you opinion have an as to what caused 7, Ortega, 77 N.M. (1966)— go car to northbound over into the insanity; 175, Deming, State v. 66 N.M. southbound ? lane 77 A.L.R.2d 964 and (1959), through “A. All that area is there Hull, Bunton v. cuts, described, my these as I have and Co., (1947) speed; Skala Y. v. N. Life Ins. — opinion coming is as she was out of one supra despondent mood; Cooley, State v. — gusts these cuts one hit her car supra appearance friendly relatiоns. — and caused her to swerve into that lane. whether, gen- issue here is a as only my That conclusion. It was like proposition, eral non-expert may opinion an unavoidable accident as far as amI received; the issue is whether a sufficient concerned.” presented “basis permit receipt was to of the correctly pex-mit The trial court refused to mon-expert opinion. qxxestion and answer in evidence. disregard holding following: (1) so Teague, driving we south about one-fourth n milebehind the Pavlos the fact have that we no idea what was vehicle, on a was n downhill factors;” (2) meant “all slope other the fact and had a area of the view prior experience driving that the where the accident occurred. some He saw only Teague shortly that familiar with place (cid:127)of the be- events which took road, times; having “traveled” it several fore the collision and collision. also saw the answer, “like an that the unavoid “strong,” blowing He testified the wind was question able a in accident” raises as to an along that that there were cuts “all there” “ * opinion admissible on a up matter of law. See would cause the to wind slack Beal Union Gas Southern anywhere speed testi- its in there.” He also A.L.R.2d place at the the acсident fied that where hills or occurred the road was not between only portion We consider that to the -cliffs close road. question concerning Teague’s observations way experience at the “in scene and “ * * * Teague testified he took the of weather conditions.” ordinary you precaution take with “” * * * * * In each of the New cases cited Mexico your with the side. wind opinion rule, non-expert per- above on the through dust devils all down were [T]here “ key per- factor in sonal observation a dust devil there.” There was Wigmore, mitting opinion. Evidence time of coming in that area about 1940), arguing for (3rd * * at 24 ed. * werе impact. The two cars “ non-expert opinion * * rxxle which New * the northbound approaching adopted, justification bases his Mexico has I moment its lane and the next -car was in testimony * * for the admission of such * impact, was an saw it there personal observations witness. Teague point impact.” right at that dust Teague’s testimony re- as An angle the Brint car examination state the couldn’t testified he acci- veals that he never that observed got when he approached, he but * * * scene, accident never said cut near the the Brint car dent scene road, near the accident scene or the it was dust devil wаs straight across testified that he obr never Brint car and (cid:127)east and west.” question broadly was too because the served the movement happened 20 miles framed. The accident across of travel and moved it left its lane question was di His south of collision. Socorro. highway point observations, twenty-five signs miles either at the rected to conditions wind scene, then accident direction from the general. His simply are too scene signs there;” through changed ask about from Socorro “all “anywhere in is about Consequences on the the north to Truth or there;” The evidence “in area.” south, approximately miles. distanсe of visibility up two miles the area of distances, to such With the directed Teague’s ob- driving to the south. a car 'discretion, could, prop the court in its testimony conditions trial about wind servation erly question absent permit refuse to applied near the the Brint car is never to relevancy signs of as showing some to accident scene. Compare In re at those Wil distances. Specifically, laid at on the foundation Will, liams’ 71 N.M. tendered, question and answer was time the Here, relevancy showing of the there is no a Teague’s opinion speculative. Such was signs of far removed from the accident so speculative opinion properly excluded. was scene, and, thus, nothing base a on which to Fitzgerald Fitzgerald, v. See its dis claim that the trial court abused Highland Adamson v. P.2d 398 refusing question permit in to to cretion (Ct. Corporation, 80 N.M. be asked. Hull, supra. Compare Bunton v. App.1969). Next, questions defendant tendered to experi- Teague’s only evidence as to Teague. question A answers of the witness conditions, apart from ence as to weather signs of the acci- was directed to “north” testimony, that included in his “observation” indicating strong winds ahead. The dent ordinary pre- observing is that he was “ * * * are warn- answer was that there on the wind driving in with caution taken areа, signs through there ing all from as to the your is no side. There evidence ”* * * question The next was on south. car, evi- nor effects of wind on the knowledge personal Teague’s directed to vicinity of dence of conditions wind “ * * * strong experience winds to as is there evidence that car. Nor frequent that area on occasions.” in Teague’s experience with wind conditions there frequent occasions answer was “[o]n im- he observed similar the conditions to are. Compare mediately prior the accident. to the defect of re- question The first has testimony plaintiff’s observa- as to the in connection with moteness discussеd in v. of wind Wood tions of the effects question policeman. the state The second to Fire Insurance Michigan Millers Mutual answers, question, referring to and both S.E.2d 310 243 N.C. area,” speculation “that have the defect of testimony is Teague’s “ordinary precaution” the foundation discussed in connection with opinion as the effects not a basis for an to Teague to testimony permit to the effort is no car because there of wind on the Brint further express opinion. show- Without testimony effect of wind either as to the say ing, the trial court erred we cannot Spe- generally. on the Brint car or cars questions and refusing these the tendеr of testimony concerning cifically, there is no result, that the ten- answers. This same Chavez, “experience.” Compare State inadmissible because dered was supra. speculative, applies to the effort also err in re The trial court did not . Teague’s opinion on defendant to introduce fusing question and answer. the tendered redirect examination. retendered ruling, After this defendant then liability. Directed as verdict concerning question policeman ato state objec the trial signs warning gusty At the close of all the winds. against defendant court properly sustained directed a verdict tion to this 18-8, liability. 9, pt. as- (Repl. on issue of Defendant N.M.S.A.1953 Vol. here, exceptions “The error because serts : trial court With not involved 64—§ 18-8, supra, provides it is not as matter law that vehicles are to only negli- roadway. he It is be right-half left-hand lane. driven on gence Although a matter law to be there is that the Brint evidence traffic, traveling in the left-hand lane car was the road at present collision, left-hand lane of moment defendant as- ”* traffic at the time of the accident. serts there no that Mrs. Brint point argues Defendant support both it In drove there. of this conten- presence tion, Montoya, of evidence and absence defendant relies on White рresumption of due of decedent. care and the (1942), evidence that the Brint “swerved claim, answering In defendant’s we severely” highway point across the Schuelke, start with Paddock v. of collision. 759, 473 P.2d 373 (Ct.App.1970). Under Montoya, that case the burden on defendant ex supra, motor- White presence plain cyclist ap- Brint car on judgment who recovered wrong side at the instant of parently wrong road of the street side However, collision. when the collision occurred. there were inferences from evidence in- Defendant asserts there are explaining why cyclist was across to ferences sufficient explanation center line. this With jury, ex- raise fact issue which Supreme New stated it was Mexico Court plain that the Brint car was side- blown impact that the occurred across immaterial ways across the He road. relies on “ * * * line center street Teague testimony under the first reviewed he had been does not follow that [i]t in opinion, subsequent issue this testi- of the street.” on left side travelling mony Teague terrific that there was “a wind in there.” Defendant’s reliance Montoya, supra, does not re- White v. n onthis testimony predicated is on his as- quire holding that the directed verdict of * sumption Teague that testified liability improper here there was becаuse place dust was at the devils [o]ne traveling was evidence on or impact at the time of the accident.” This side the road. evi- testify. Teague did not His reference so por- dence more than the selected involves strong unspecified up wind in an is area severe tion on which defendant relies —the to two miles. His reference dust devils the Brint swerve. The evidence that is area;” “in was that his cross-examination car over the centerline into the crossed fly” makes clear that he “saw the dust at manner, lane in a re- southbound normal n only near the accident scene lane the same turned to the northbound сollided. Eliminating cars defendant’s manner, again into the south- then crossed misconception, Teague’s not does “ * slight diagonal, at bound lane support an that inference the Brint ” * * * slight uninterrupted angle. no blown across the There is road. verify the Brint skid marks of vehicle -evidence that wind “in area” existed description; the skid start marks any way near accident or was in scene lane, return to the northbound southbound resulting involved the events the col- return to the on a lane and then curve speculation All we lision. have is which impact up point. lane southbound n does support an inference. Bolt v. driv- that This is Mrs. Brint Davis, 449, (1962). N.M. 374 P.2d 648 wrong side of the ing traveling ap- the rule concerning evidence invoked argument road. This Defendant’s Schuelke, supra plied in v. an 64— Paddock absence of evidence based on § —the explain burden was defendant fact that the Brints were hus (cid:127)presence not, itself, of the Brint car on the band and wife a basis for- explana- imputing of the road. Since there was negligence no wife’s to the hus “* * * tion, liability the directed verdict band. impute In order to the- Schuelke, proper. supra. another, Paddock v. person of one a rela 453 P.2d 440, Fire Insurance presumption Mrs. Brint. Compare Payne never existed. protect it is tial evidence which ing Defendant also “ * * * is introduced to it then invoked until or shield a of due (Ct.App.1969). It ^ Company vanishes as recognizes argues that there was a presumption operates to Tuozzoli, person credible and would care on the states: Horne, in whose favor support though that Hartford contrary, 80 N.M. substan- 65 N.M. part a find- it had or principal-agent relationship band Trefzer v. N.C. No there is no evidence of a master-servant tion of master or spouses. Compare subordinate other of the marital relationship that * (1952); ^[*] presumption or wife is 601, *” 278, * * *” McDonald v. 128 S.E.2d 675 Bailey 238 P.2d Stiles, 414 P.2d must acting arises from the 56 N.M. superior Holloway v. Jeffries-Eaves, Inc., Rushing v. exist between them. Senn, as the and servant or (1966). agent between Evans, Polk, mere “* * the hus Compare of the- Here, fact the- * 10 A.L.R.2d presumption Defendant claims the of due 21-6-6, case, (Repl. N.M.S.A.1953 care Vol. remained suffi- the With this dence bility, because cident. dence of a lack of due care on the cient to from the decedents again of * * * prevent ‍‌‌​​‌​‌​‌‌‌‌​‌‌‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌‌​​​​‌​‌​​‌​‌‍side, —is path and then across to the prior evidence of “ * * * ” side of a directed the Brint car traveled— ancy We to the time of the ac- presumption disagree. lack there is no evi- verdict road, due The evi- back part of lia- care. due of 3-2, was not identified —we Mrs. Brint were owners of the * * * er it was P.2d 371 (1959) states: Parker v. It was N.M.S.A.1953 or ” tenancy stipulated The nature of this community property, McCartney, in common. Section 57- (Repl. do “ * 216 Or. not Vol. ^[*] co-ownership, know 8, automobile, joint pt. 283, Mr. and wheth- ten- care had vanished. “* * * [C]o-ownership itself re- * * * futes agency. Co-ownership is. directing trial court did not err in actually the employer- antithesis of an verdict on the liability. employe principal agent or relation- Directed against verdict the non-driver ”* ship. co-owner present. who was Korff, See also Sherman v. 353 Mich. Although proceeded prop- the trial court 387, 91 N.W.2d 485 There no- erly directing liability a verdict of imputing basis for negligence the wife’s to- against Brint, the estate of Mrs. should tenancy husband on the joint basis of a verdict against have been directed tenancy or a in common. estate of Mr. Brint? Mr. Brint neg- driver. There is no evidence of any Nor is there such the- basis because ligence part. on his may co-ownership community have been property. Funiak, Principles de of Com- The trial court directed the verdict munity prin- Property reviews § against the estate of Mr. Brint on the basis ciples * * * community property law and that the wife’s states: imputed also to her husband who was a co- “ * ** owner of the riding motor vehicle and was could be- [S]he [the wife] beside her in the car.” responsible held wrongful. for her own . compensation highway. recovered there- acts and See Parker McCartney, v su ; property pr property Korff, supra. her own or Sherman for from a husband, property No of the interests. Neither the relationship, marital the co- separate property his share either his ownership car, presence of the nor the a.of community property could be passenger co-owner when another co- made liable for the wife’s delict.” owner is driving, individually, considered Funiak, supra, 1 de it is stated: raises a presumption that the wife driver agent was an passenger. husband superior resрondeat “The doctrine of items, Nor did these considered collective- has sometimes been in an effort invoked ly, presumption. Compare raise such a liability fix husband for the Strayer, Valencia wife, usually act of the tortious cases grounds in the- On stated where act results tortious verdict, trial ruling, court’s the directed family driving wife’s automobile against the estate of Mr. was errone- by or the husband’s his au- automobile ous. ap- thorization. It should parent, principle under com- asserted, however, It is that the- system munity property spouse that each trial court reached the correct result be separate person in his or her own family purpose cause doctrine. right, acting as an in- wife is argued trial While doctrine was just dividual in the automobile court, there was no basis the evidence- be in as much as husband would applying this doctrine. The basis driving it. He no more be liable should family doctrine, purpose applied to- for her tort than be for his. she should automobiles, is that involved * * * has if the husband re- Even general maintained its owner for use quested proceed or ordered her to to do a family. convenience of his thing, in certain course of which she Howell, Boes v. 173 P. act, commits a their relation is tortious L.R.A.1918F, 4.9. N.M.U.J.I. not one master and servant. There is no that thе Brint car was used; all is that and Mrs. so know Mr. we in the trial The third element were, Brint, occupants- daughter, and their’ ruling presence the the court’s is hus of the car the accident occurred. car. a non-owner is band the Where presented’ arguments Two are additional car, in the driving, present and the owner is appeal support in the directed ver is the presumption exists that the driver common, is joint dict. One venture Farm Mut. agent of the owner. State Waldie, theory. purpose Silva R. Ins. Auto. Ins. v. Foundation Co. Knudson v. See Boren, 1958). Cir. There- (10th 261 F.2d 15 Tuozzoli, presump Payne supra. This joint this of a direct case is no owner, theory on the that tion is based рurpose. It prosecution a common or of car, present to control in the has purpose be- could is doubtful that a common Annot., 50 A.L.R.2d the driver. See evi more have no inferred here when we theory applicable where is (1956). No such and. of the Brints presence than the dence other co- and the driving is one co-owner 2 Re daughter Compare in the car. their inapplicable passenger. is It owner statement, (1934) (f) comment Torts § equal in status are the co-owners because Restatement, 2d com Torts with § co-ownership ownership; refutes and (h) (1965). ment McCartney, supra. Parker agency. 57-4-3, based on cо-owners, presence argument The other is Since, is an § as between 8, pt. 2). This (Repl. Vol. presumption of N.M.S.A.1953 for basis insufficient places husband reality of a statute not we do reach agency, person management and control speeding down the control” a car “right to negli- imputing for was no there basis community, property of

al any the theories Mrs. Brint on gence of hold, under the have us Plaintiff would to the trial court. presented as to the presumption community property co-ownership, under § nature of judgment against defendant as 57-4-3, wife was supra, that Brint is the estate of Rebecca executor of manager оf the agent of the against judgment defend- affirmed. The theory this community. It is doubtful of Ber- the estate ant as the executor of Funiak, supra, 182. de1 is valid. See re- Brint The cause is nard reversed. manded with to vacate instructions theo the two applicability of applies to present judgment as it insofar Here decision. before us for is not ries Pavlos, judg- a new Catherine and enter pre the matters have discussed tofore we against as executor of the ment defendant Apart decision. the trial court for sented to Brint and in favor of de- estate of Rebecca to the trial presented the matters from fendant of Ber- as еxecutor of the estate court, theory plaintiff’s concern we know nard Brint. the amended com ing the Brint car from It is so ordered. amendment plaint proposed and a trial trial court’s pleadings. Neither SPIESS, trial J., concurs. ruling, presented the matters C. plaintiff’s pleadings argument, nor court in SUTIN, Judge (dissenting). question joint venture presented the family apart purpose common I concur that negligence of Mrs. agency purpose question of doctrine or the imputed cannot be I dissent to Mr..Brint. management and correctly based on the husband’s point on the that the trial court Plaintiff, community property. control of entered а directed verdict argu asking consider these two liability us to of the estate of Brint. Mrs. theory ments, change are, seeks Teague’s (1) reasons nonex- may Board appeal. do pert opinions case on so. She should have been admitted Education, Educa Board of etc. v. State the evidence suf- tion, (Ct.App. ficient to create an issue of fact Mrs. Digest, Appeal New See Mexico negligence. Brint’s Error, numerous deci ^171(1) verdicts, summary Directed judg- like point. sions on ments, cautiously sparingly must be against the estate The directed verdict upon used. “Where the burden cannot either of Mr. Brint be sustained moving party and he sеeks sustain it rulings grounds in the trial court’s stated witnesses, a directed ver- grounds presented to the trial court. or on granted.” dict will seldom be McMullen directed be reversed. The verdict must Sisters, v. Ursuline of Order N.M. the There remains for consideration a directed verdict of whether ques- Was there an of fact on issue granted of have been in favor should liability? tion of Mrs. Brint’s moved, Defendant so estate of Mr. Brint. The Brints died. The two witnesses who the trial court and this motion was before contributed to the and issue were Pavlos directed.

when the erroneous verdict was Teague. They both saw the accident. was no that there Defendant’s motion was testimony The most favorable and rea- part Mr. on light strongest in sonable their inferences in no inferences Brint and that there were Brint, opinions including which favor Mrs. jury impute the case sufficient for to admitted, Teague of Mr. which were not Brint. De- negligence to Mr. Mrs. Brint’s are as follows: granted. motion should have been fendant’s years age, a Mrs. Brint 60 or 61 Brint that Mr. There is no evidence herein, reasonably good health. person normal in discussed negligent. previously As any windstorm, her husband and retarded a She was character of distin- guished by There child northward toward Socorro. its concentrated force and vio- lence, straight highway, especially was a clear view on this so resistless as to it make operator tra- and each vehicles destructive in a pathway; could see its narrow and velling on either At the time small lane. whirlwind violent and destruc- place blowing accident, the tive wind was windstorm. terrific,

strong dust devils. and and created Teague When was asked what ob- his Right impact, there the time of about servation was about location a dust car came out of devil. Mrs. Brint’s devil, dust he “At said: that time I would one of the cuts in the hills and one of the say there was in coming one that area gusts of hit her car. she was wind When impact.” about the time the' [Em- 75 or 50 feet front of car in the Pavlos’ phasis he When offered testi- added.] lane, opposite the dust caused Mrs. devil “ * * * mony that gusts hit one- of severely to swerve to the left into her car and caused to swerve directly across the lane * * * ”, a reasonable he inference is that path of blowing Pavlos. wind The meant the devil.” “dust there, strong way through all anybody could lost of a car. have control lay opinions Teague were admis It like was all an unavoidable accident. teacher, sible in tie was a school impartial, by and actuated a desire to tell There is no that Mrs. Brint He gen truth. was not a hired willfully, wantonly, recklessly, deliberately “ erally expert. ‘ordinary biased wit inadvertently made severe swerve permitted ness up is sum total re right-hand from the side of her lane to the impressions membered and unremembered directly ‍‌‌​​‌​‌​‌‌‌‌​‌‌‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌‌​​​​‌​‌​​‌​‌‍left lane across front by stating opinion the senses which of Pavlos’ automobile cause three deaths they produced. may deprive allow less To in her car. party important and valuable evidence A appears “dust devil” to be a matter of got way.’ that can be at in no other Ter common knowledge in the It southwest. ritory McNabb, 625, 636, product dry country. of hot and desert P. Teague’s Without Dictionary Eng- Random House opinion, jury able would not be to form Language lish “dust defines devil” аs fol- intelligent an on fact that her decision lows : suddenly to the left. The rule swerved small whirlwind feet 10-100 “[A] descriptive settled that mere ‘Where diameter and from several hundred to language convey inadequate high, dry regions 1000 feet common in jury precise bearing facts or their hot, by calm afternoons made visible issue, description by the witness dust, picks up debris and sand it necessity supple must of be allowed to ground.” opinion mented put in order to A “whirlwind” is defined as: jury position make final decision any “1. of several small masses of air * *" Cooley, the fact’ State v. rotating rapidly around a more or less 1111, 1117, 109-10, P. advancing vertical axis and simultane- L.R.A.,N.S., 230 (1914); New Skala v. ously sea, devil, over land and as a dust 83, 78, Co., York Life 24 P. Ins. N.M. 172 waterspout. tornado or (1918). 1046 21-1-1(43) (a), See N.M. whirlwind, anything resembling “2. (Repl. 4). S.A.1953 Vol. action, force, as in violent destructive etc.” It is wise to remember that the trend The term be in jurisprudence “dust devil” should con- American is toward greater popular referring strued in its admissibility seiise as of evidence. must We 768 puts operation of de- puted evidence any avenues reasonable “close not lane, wrong in the de- vehicle questions of fendant’s investigation of in the

truth going fendant has the burden of forward doubt should cases the In doubtful fact. admissibility.” explain the evidence to order with of its in favor be resоlved negligence per avoid se. Company of Insurance v. Brown General 968, 46, 53, 54, America, N.M. 70 Brownlee, began The rule with Frei v. 206, Heesen, ; N.M. Lopez v. 69 (1962) 973 677, (1952). N.M. 248 P.2d 671 though a Even 214, (1961). 365 P.2d 448 duty had a to ex- court said defendant trial court allowed discretion is broad wrong plain presence on the side of admissibility of passing on negligence. Frei relied road without her may not not absolute its discretion is Brunswick, 292, on Purdie v. 20 Wash.2d party impede either exercised so as speaks case (1944). 146 P.2d 809 That trial case. The adequately presenting side, “travelling” wrong terms of ad distinguish between court failed to severely swerving wrong not across missibility Teague’s evidence Perhaps, lane. under normal circumstanc- City credibility thereto. weight attached or ets, travelling swerving both constitute or 401, Gonzales, 80 N.M. Fe Santa statutory per or common law P.2d 875 party Both can if the on se. be excused wrong goes the evi- forward with impact Teague judged When explain why dence to the event occurred. * * ”, accident was “like an unavoidable layman’s language speaking in he was Scott, 354, N.M. Martinez v. giv not He was legal language. (1962), the said: P.2d 117 court law, but ing opinion an on a matter of * [Tjhere is a total absence of By fact. “unavoid a matter of ultimate proof permissible or inference he accident,” probably Teague meant able explain presence of de- to excuse or any Pavlos do see Mrs. Brint or did not in the lane.” cedent’s car Hale, 66 Ferguson v. thing wrong. See Schuelke, 759, 473 190, Beal v. N.M. P.2d In Paddock v. said, (Ct.App.1970), the court 349 P.2d 393 Union Gas Southern “ * * * explanation.” Hart there is no His 84 A.L.R.2d 1269 Horne, 65 N.M. conjec ford Fire Insurance Co. speculation was not or hold appears to (1959), “Speculation” “guess.” ture in the sense of travelling as that the decedent theorizing a matter is the act about negligent a matter of law side is for cer to which evidence is not sufficient explain” tending to there is “no evidence knowledge. tain v. U-Drive-It LeGrand Rice, 58 Co, violаtion statutes. State (Mo. S.W.2d say (1954), seems to Teague He relied saw both vehicles. party that a that the evidence must show hitting the on facts such as the dust devil wrong lane conditions, travelling in the car, climatic the move vehicles, explanation. topography. without ment not make his facts and inferences do These a directed is sufficient to avoid What n opinionsinherently improbable, but, if some permissible proof much verdict? How exist, is for doubt should the determination ex- necessary excuse or inference is jury, weighs not the courts. The jury plain presence Brint’s car credibility the evidence and determines the wrong lane? the evidence or inference If Teague witnesses, did not the courts. appears, made, explanation if an does not theorize. negligent as this mean Mrs. Brint was not law, it it created matter or does mean developed A rule has in New Mexico n called “The Burden of me, it jury? an of fact for the To Explanation.” issue is, an issue of fact under all of it should create What means that when the undis- circumstances, 487 P.2d 197 facts, inferences and case. presumptions Mexico, Plaintiff-Appellee, STATE of New Supreme has held where Court emer a sudden WATSON, a driver is confronted with Johnnie Morris Defendant- ‍‌‌​​‌​‌​‌‌‌‌​‌‌‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌‌​​​​‌​‌​​‌​‌‍ Appellant. explanation for it genсy, sufficient No. 613. lane of Burkhart leaving his travel. Corn, (1955). Appeals Court of of New Mexico. circumstance, it follows

Under July 2, 1971. travelling had not been driver Montoya, left White v. side. so that where (1942), lane, wrong suddenly turns into the

driver ques are proximate cause light in the the trier of the facts

tions for pre facts, all the circumstances

sumptions by Mc presented the evidence. Linick,

Donald v. Gomez, N.M. Martin v. See foregoing, I conclude:

From all of the lay Teague were opinions

1. The

admissible in evidence. “travelling” on

2. Mrs. Brint was presump- side of the road. her be- operates protect

tion due care there is no credible and substantial

cause finding to support a

evidence which would contrary. cannot read Brint’s We Mrs.

mind, the car so nor define her control of negligent as a matter of

as to declare ques- are Negligence

law. and causation light of all jury in the

tions of fact for facts, circumstances, inferences presented the evidence.

presumptions explanation” doc-

3. If “burden applies, there is evidence and reason-

trine explain or which tend to

able inferences presence of her car

excuse the care The issue of ‍‌‌​​‌​‌​‌‌‌‌​‌‌‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌‌​​​​‌​‌​​‌​‌‍reasonable lane. question of

under the circumstances jury. jury had the

fact for the Teague and the

to believe or disbelieve negligent or free

right to find Mrs. negligence. disallowing erred

The trial court testimony, declaring

Teague’s opinion law, matter negligent as a

Mrs. Brint plaintiffs directing a verdict liability. question of reasons, dissent. these I

For

Case Details

Case Name: Pavlos Ex Rel. Pavlos v. Albuquerque National Bank

Court Name: New Mexico Court of Appeals

Date Published: Jun 18, 1971

Citation: 487 P.2d 187

Docket Number: 612

Court Abbreviation: N.M. Ct. App.