*1
400
“Causes by an admission tract shall be revived THOMPSON, minor, James Patrick as unpaid, well as debt is Thompson, James B. and next his father same; but promise pay new friend, Appellee, Plaintiff and must promise new such admission or v. party signed by in writing, be George ANDERMAN, Percy P. Glasebrook ”* * * charged therewith. be Joseph Albuquerque Land Bus d/b/a Company, Appellants. Defendants and merit. is without This contention No. 5834. made partial payments to have been shown Supreme Mexico. Court New written ad are not such on the indebtedness 18, May 1955. promises debt missions new Rehearing As on Denial of Amended limita right thereon and bar revive the will July 1, 1955. Petran tions, the above section. within Motion for Leave File Second Motion 365, Frkovich, 164 P.2d 49 N.M. v. ovich Rehearing July Denied 1955. Lopez, 386; N.M. 37 Bullard v. P. 1103. claim, the court Howeve'r meritorious
. where the render assistance powerless to protect his own -failed has
claimant
rights. conclude foregoing we all
From reversible no committed the trial court affirm- must be judgment and that the
error
ed.
It is so ordered.
COMPTON, J., and SADLER C.
McGHEE, JJ., concur.
KIKER, participating. J., not
á02 *4 May p.m., at That about :40 “2.
28, 1953, the minor Patrick James Thompson passenger was a for hire on operated by of de- one the buses by agent, fendant driven its serv- in employee ant and course and scope of its business as a common carrier; traveling that said bus was easterly public in an direction on a Akin, Dickason, Sloan, Mims & Rodey, thoroughfare designated as Lomas Ritchie, appel- Albuquerque, for C. James N.E., at Boulevard its intersection lants. N.E., Street LaVeta when de- Chavez, employee Smith, agent, fendants’ servant and Ar- Joseph Lorenzo A. L. partially completed a left turn from appellee. for Albuquerque, Ortega, G. turo
Lomas Boulevard N.E. to LaVeta N.E., negligently parked Street LUJAN, Justice. defendants’ bus with rear its end minor, Thompson, Patrick James approximately feet paved six Thompson, father and next his B. James portion N.E., Lomas Boulevard friend, brought against George suit any giving signal without Anderman, Percy P. Glasebroolc warning his intention parking, of so under the name doing business Joseph Land immediately permitted thereafter Company, Albuquerque Bus to recover minor, Thompson Patrick James injuries damages sustained said for alight from rear door of said minor, negligence alleged a result paved portion the middle of the bus verdict, jury, The their of defendants. for of Lomas Boulevard N.E. plain- the issues favor of answered negligently “3. That defendants and, tiff, judgment entered accord from stop their bus the regular failed therewith, appeal. the defendants stop highway in a off we refer For will convenience James safety purpose discharging minor, plain- Thompson, a Patrick as the minor, Thompson, Patrick James tiff and to defendants as Bus doing so chose to invite but instead Company. paved the bus on the alight him highway defend- when complaint, among portion other things, should have known knew or alleges: ants *5 approach- Hospital Bataan Memorial heavy vehicular traffic was in a semi- way endanger him critical ing in such a as to comatose and condition with stepped upon pavement fracture, and a basal skull as he cerebral con- when, cussion, serv- brain agent, damage had the defendants’ stem and chest any complications employee ant and care due to bleeding together looked with rear, he have seen the 1950 extreme mental physical to must with and Doge model ton truck shock. one-half after collided the minor an instant with Thompson, “6. That Patrick James alighted in the middle minor, has will sustain severe
of Lomas Boulevard N.E. physical pain anguish and mental injuries and has sustained brain proximate “4. That as a result of system per- and nervous which are negligence of defendants and manent in nature and and will has duty each in their breaching of them incur large bills in sums for neuro- Thompson furnish Patrick James surgeons specialists and medical minor, alight a safe in which to hospitalization, plaintiff’s damage all to under the circumstances and in failing » ‡ >¡í give any warning of their intent to park paved portion their bus on the The answer allegations denied the of the highway to the minor James complaint pleaded as an affirmative Thompson any person Patrick law- contributory defense negligence on the fully traveling public on said thorough- part plaintiff. including fare the driver of a 1950 May 28, 1953, The accident occurred on truck, ton Dodge one-half Robert Dean approximately p.m., Albuquerque 3 :30 Becker, proceeding who was in an at about the intersection of Lomas Boule- easterly direction on Lomas Boulevard N.E., vard and LaVeta Street N.E. Lomas immediately bus, behind said N.E. width, is twenty-eight Boulevard feet Thompson Patrick
minor James side, approxi- dirt shoulders on each with by the left front of the Becker struck wide, mately twenty feet and runs east pavement thrown to truck and LaVeta and west. Street which intersects force violence. great it, being thirty-four is estimated as feet proximate a further wide, That as running “5. north and south. There is negligence defendants’ path pedestrians result of at this as no intersection for .aforesaid, Patrick Thompson, cross Lomas barricade, Boulevard. A James minor, has been confined in eight .a feet long, placed and one inch passenger Street, north stance as follows: That he was at the middle of LaVeta plaintiff; of about the bus which each side carried
end, with a clearance by. go the bus was Lomas Boule- going traffic to east on feet allow ten or twelve vard, blocked, repairs, approxi- street due to stop busses regular *6 stopped from the and that the center sixty seventy feet bus in the mately streets. the street. intersection aforementioned hire plaintiff passenger for was a “ * * * Q. what —tell us Just boarded particular he at bus which this you Well, what saw. as the bus A. and Lomas of North the corner Carlisle Boulevard, going was east on Lomas the bus reached the Boulevard. When the blocked, repair, was street due and of Lomas Boulevard and intersection stopped, suppose you the bus I would temporarily stopped it Street was LaVeta say the center the street. east, proceeded facing the then it to turn “Q. The what center of street? stopped Street at LaVeta and onto Lomas, east, heading A. and he angle on the north traffic 45-degree lane moment, there hesitated and was an Boulevard, end Lomas the back of the indication from the crew that the street about six from the being inches center time, open be in a short so he thereof, plaintiff permitted and the line is, turned north on That LaVeta. he place therefrom. The for alight en- LaVeta, get didn’t onto the end of the part bus, the forward of the is at trance pavement, still bus was and for exit at rear and on, him 'prior moving from the opened are and by The doors closed bus. street, boys asked center him the control of the under lever motorman. open if he would the door and let them aforesaid, stopped as the bus When 'No, The bus driver said I out. can’t plaintiff jumped and the opened out door out, However, you let here.’ after he approximately two or three ran feet and from the street, moved center of the line the south center side of over Veta, stopped, into La he as going he truck, pickup Boulevard into a Lomas door, opened (Interrupted) easterly in an traveling di- and — severely injured. rection, open? Which did “Q. door he A. door. The back the following discloses The evidence facts: actually “Q. And converse did he boys, your hearing? A. with being called Melancon Nichols as a
Mr. opened plaintiff after he [witness testified sub- door. Not hap- opens. And that is what them, the door converse he “Q. Did case, opened.” pened this the door them off him to let they asked when Yes, he did. A. the bus? Roeder, plaintiff, Bobby called re- manner was he in what And “Q. substantially as follows: That when testified A. The open the door? quested La- bus reached Lomas Boulevard and and let ‘Open the door boys just said stopped driver Veta Street the bus about open T can’t he out,’ said us Lomas Boulevard and that the the middle of moved, then here,’ then he door, off; yelled plaintiff to be let that the bus opened. door door; opened plaintiff ran driver hit and the truck him. A. out open the door? And “Q. did To [*] my knowledge, [*] [*] he did [*] open [*] it. [*] follows: Charles That Cope, testified bus was substantially turning into happened? A. what And then “Q. Street; a road LaVeta there was there, the bus driver- stop in the so had to boys standing block three There bus; asked the bus driver largest one doorway, out; please open the door and let him out, and was struck boys ran opened the bus driver door and pick-up truck. [*] “Q. Did [*] you [*] hear [*] the bus [*] driver [*] was *7 plaintiff going, ran out without and then was struck looking the truck. where he stopped Donald testified that the comment, bus at scene the any other make Jones middle over, about the of Lomas at Boulevard He went A. the accident? just it turning as was Street telephone, got and back onto LaVeta the used plaintiff and let ‘How the off. bus, and said did the he on bus, get the did out boy get off the he that he W. V. Freeman testified was rid- open the said he didn’t window?’ He ing his wife on Lomas Boulevard at door. accident; they the that the time of were open that he did not “Q. He said pick-up feet behind the truck about 100 that was his statement.” That A. the door? bus; immediately behind the was that when he testified: cross-examination On the bus reached Street it turned LaVeta sitting, I stopped I was street and an angle From where on said “A. (cid:127) opened he the whether the not see with the back end of bus about could six However, door, I have ridden not. inches to foot from the center of or the lot, street; you quite a and whenever that within a second or so the busses click, release, plaintiff running the started south across air Lorn- hear the. Yes, turn and A. pick-up; stopped? the there the into and ran Boulevard as were traffic feet behind me. three boy two fell about the that Boule- Lomas center line the south of Well, “Q. How I close? A. would the wind day clear but vard; the that was feet, say twenty twenty-five maybe. com- no traffic blowing; that there was was Now, that is my estimation.” the east. ing from point Company Under one the Bus con- she was driv- that Freeman testified Mrs. plaintiff that alighted tends “since from de- easterly direction family car in an ing reasonably place, fendants’ bus at a safe were Boulevard; they as that on Lomas company defendants’ bus no breached she saw up Lomas coming Boulevard duty plaintiff towards and was thus position, and very unusual stop in a bus negligent.” It argues that because the wondered what husband that her she said to whole westbound lane Los Lomas Boule- her, there; that ahead of doing was bus bus, vard rear blocked there was hundred feet ahead about one it protection afforded any bus; that, pick-up following truck a red eastbound approaching in wrong traffic bus, got up just truck as lane, place and a where he could have re- it; ran into boy came across street perfect safety mained with for a reason- steps when taken or three that he had two that, able time, therefore, amount of happened truck; so ran into he just he was as safe as he would have been that there no westbound traffic quickly; he alighted regular stop. had. at the bus time. at that on lane This contention is untenable. he was testified driv- Robert Cole The passenger in the at bar case was not saw Lomas Boulevard he ing on bright mentality too lad who had approximately center of the stopped, at year old, a ten if it and even could be street, La- make turn onto left-hand permitted said that he was where Street; stopped that it with the Veta adult, alight be safe for normal blocking headed front end north necessarily it does not follow that it was. lane; the traffic west side of a young person. Cases involving safe see the far behind bus to accident. too adult, might a normal be cited as L. the driver of Ballinger, Emerson showing company the bus would not *8 cross-examination, testified o'n as fol- liable, pres- not determinative of are be lows : issue, it be said ent unless could that a “ * * * safety a (six inches to foot Q. you any place see of ever Did street) is oné line wheréin you made the center of you, close behind when
traffic him. proper towards if he re- not care to harm exercised person a no would come it, must not be It said: and that it mained compe- any of by
measured consideration carrier of duty “The a common of given in a deposited ability one tence or of to obligation passengers an includes subject- therefrom place without emerge to in which to place a furnish them safe If, of the environs. ing himself hazards to provided place that is alight, as far however, an adult passenger had been by by it conditioned or is affected or that it awas might it have been asserted vehicle, and that the movement of a place. young But if one leaves safe duty exercises only if it satisfied spot, immaturity at the in its child same and skill degree of care highest the line of the street in it ventures cross to expected reasonably of may which be by injured a traffic and run over and prudent en- intelligent persons vehicle, reasonably it then be could motor business, view of the gaged a in such place in a put had been said the child the dan- employed and instrumentalities impel safety? These considerations us of apprehended. naturally gei's be it be too nar- the conclusion * * * is able to An automobile bus say safety of a construction to row stop move in the street will or solely by place must determined wheth- a be driver, safety and the of its. be safe if he remained er not one would or passengers alight may he offers its exactly parallel case in in We find no it. pass- by be affected conditioned a few reports this state and deci- * * * ing traffic. The care to be jurisdictions are in other sions a child young exercised toward travel- may latter be noticed. Two .the aid. ing proportioned himself must be Co., 113 Roden v. Connecticut Conn. In danger inherent degree of his 722, boy was a 155 A. youth inexperience.” years age, and at the end of seven Taylor Adm’r, Ky. In v. Patterson’s discharged the bus run of 488, 490, 415, 114 the driver dis- S.W.2d opposite that where street his side of year boy charged seven old a side operator stopped was located. home very necessitating crossing a street his way part it in such of was the bus home, busy reach street to his and he was road. Passengers shoulder injured by passing opinion truck. In the only pass right from the out side of could it was said: descending steps In the bus. (the plaintiff’s “If Patterson in- passing struck motor road * * * truck, testate) had been an and was held that the driver had adult *9 possession years considering of mature of a phrase, such'a is such adult, place the the passenger may faculties normal as the use and of a occupy in reach- place court would no trouble with relation of have the to as the lia- ing quickly a conclusion to destination fixed contract under the oper- bility jutney boy of Taylor (the carriage, of bus and in the discharging pas- a on ator), opposite but here child the the his we have side of street with; home, senger years under seven although to deal he have been school, age, just returning there, from full of safe if he had the remained life; doubt, anxiety, appellant place of no as great did to not select a safe age, him, that reach required usual in of to discharge a child as he to was possibly quickly, his home and mother take into consideration the of location appetite gnawing destination, home, heav- place was the his-childish of his the upon ily, only things thoughts age boy, and his the and the known haz- upon that the dan- character and crossing ards to be the encountered gerous surroundings boy’s home, place were obvious street the to adult, possessing age an at that (Emphasis ours.) to destination.” judgment little or or but discretion (cid:127) present case should driv In ability perceive surroundings situ- er, dangers incident knowing produce injury or ations that would Boulevard, heavy traffic Lomas vehicular death, he undertake to cross should years, traveled seven he had six or (cid:127)the street. condition of the child This paved por off have driven Taylor, passenger as was was known to street and onto the shoulder so tion street, heavily also the traveled boy young alighted could have danger'in crossing same reach not hazard the where he would street?' necessarily home was of the 'decedent place where he was in fact al Was the by appel- plain obvious to be seen place safety alight lowed to one as of facts that dif- lant. Such state years? Was driver under of his ferentiates from the this case situa- * * negligent? * circumstances of case If passenger. tion of an adult so, are defendants liable for the driv proof Taylor Under failed to dis- questions ,all These negligence. er’s were Patterson, boy charge age, of his jury, place safety, even if the for the determination sidewalk and.un discharged they we think he had der the evidence where safe were " ‘place there. A (cid:127)the 'remained authorized to find driver -Vóy' of -the ’safety,’ contemplated negligent, negligence courts bus was and that his northerly direction. damage traveling in a proximately injury caused the exit door placed, so far as bus was plaintiff. to the concerned, passenger could so that alight boy In allowing this shoulder, gravel on a alight and did sound did, the driver at a where the bus from, away the paved or trav- but the character in mind was bound bear portion highway. *10 eled of the respect their in children young istics of point Under is contended that two reason non-appreciation danger, of company “even neg- if defendant bus was circum part the under care on his able proxi- ligent, negligence such was not the in avoid care to required greater stances plaintiff’s injuries.” of mate cause Here bet they were adults if them than jury to company argues that bus inter- help themselves. ter able to vening independent plaintiff action of Bus Geronimo v. case Cavazos The of running across Los Lomas Boulevard from 865, 624, relied Lines, 247 P.2d 56 N.M. safety path his into the of the in the controlling Company the Bus proximate truck was the cause of his in- because bar, so decided was case at juries rather than negligence, any, if discharged case was that of the company. bus thé point. Here perilous obviously at an obviously proximate at an The discharged injury an plaintiff was cause of west of the that which perilous point, the middle a natural and- continuous passen sequence, by any new, In case independ lane. that unbroken traffic bound proof cause, produces there was ent injury, The ger was an adult. and without motorbus at operator injury of the which the would have occurred. stopped Co., passenger of the Maestas v. Alameda Cattle request 36 N.M. op 733; 323, westerly highway Waldie, 14 side P.2d 42 or Silva v. N.M. right 514, the left wheels re 82 posite its station P.2d 282. high paved portion of the
maining on intervening What cause will feet. He let off at four way some sequence chain break the and so far the shoulder point which wrongdoer’s negligence insulate first perfectly safe. He which highway, wrongdoer? as to relieve injury such rear of the and started to the walked independent cause that intervening behind the bus for the highway across Lemitar, recovery prevent a of the act or omis east towards will purpose going wrongdoer must be a cause community, of a when he struck and sion small sequence events, Johnson, interrupts natural injured by Marvin who fatally J. 412 cause, prob- natural prevents reasonably have been foreseen as
turns aside their able, liable, original wrongdoer act or probable original results of the result, omission, produces a different notwithstanding- intervening act or reasonably fore- See,'also, C.J.S., event.” Negli- not have been 65 could succeeding negli- gence, concurrent or seen. The 111. § does not person which gence of a third rule, upon Based sequence foregoing not such events is
break the the mere fact intervening that there was an cause, no defense and constitutes not, law, act or event is as a matter absence of wrongdoer, in the original sufficient to constitute a non-conductor and negligence, succeeding the concurrent or negligence happened. insulate the of the bus com not have accident 201, pany’s Morrison, intervening P.2d driver. Such cause must 44 N.M. Reif v. 281, Gonzales, 229; be sufficient in and of itself break the 50 N.M. Valdez v. sequence negligence natural of the first P.2d 173. injury the efficient stand as cause of p. the rule is 489(f) In 45 § C.J. person by damage. Where a his own stated as follows: produces negligence dangerous condition “It is well settled the mere things, which does not become active causes, condition, fact that other person op for mischief until another has *11 agencies have intervened between de- upon by the erated it commission of another negligence fendant’s injury the for act, which negligent might not unreason recovery sought which is is not suffi- occur, ably original be foreseen to the act cient in law to relieve defendant from then negligence regarded as the liability. words, In other an inter- injury finally proximate cause of the which vening cause will not relieve from lia- results.
bility prior negligence where the was Crooks, Ry. Co. 125 In Cleveland v. Ohio the efficient injury. cause the The 102, 280, 103, 181 N.E. St. defendant test not to be found in .is the number negligence held liable for was in dis- intervening agencies, events or but charging passenger place at a in their character and in the natural feet about ten from the connection between the street curb. He wrong done injurious consequences, by a motor and the was struck vehicle which under- injury right probable pass if the is the natural and to of the took to bus. The consequence negligent discharged place of the original passenger was not at a omission, for', might act or said: safety, and is such as as the court
413 minor,, plaintiff, In case at bar point for the and sane “The safe motorbus, discharged from the motorbus on whether aof stoppage paved portion the west- of the middle of irregular, is at regular or stop be danger traffic lane the boulevard and bound can be no curb, there where attempt reach alighting from his cross the street to who is passenger pick-up he ran about his home into truck traffic.” vehicular two or three feet over the line on center company’s driver the bus act of The south or eastbound traffic lane. at the from the bus plaintiff discharging proximate cause did plaintiff pick-up Whether saw the truck sustained immediately thereafter injuries ran it we before he into do not know. The an eastbound he ran into when by plaintiff injuries by prevented sustained him have of traffic. lane the south truck on knowing plaintiff what the may us observed, may it is contended 'not have as he unable point three Under plaintiff’s anything action remember about the accident company that the bus eight without look the trial which was after a main road months running across contributorily negli injuries were sustained It is be him. him to shows ing question however, possible, plaintiff may of law. a matter gent ordinarily one of contributory negligence pick-up have looked seen truck proper under jury decide fact approaching. Whether he looked or not we . question of instructions, and it becomes knowing, have no means of but if he did said properly be it can only when law pick-up approach- and saw the truck look reach minds reasonable all may belief, have formed a ing, stated, conclusion, the facts under only ordinarily would be belief of an due care establish did facts such prudent year boy, ten old that he had time person charged part of caution pass in front of the truck and to cross Davis, 533, 38 N.M. Russell v. therewith. While the street. this is a matter of Hanna, 41 N.M. 536; Hogsett v. P.2d 37 speculation, nevertheless if 47 540; Thygesen, v. Olguin 22, P.2d 63 belief, mistaken, though formed such even 585; McMullen v. 377, P.2d 143 N.M. reasonable, such belief was then he Sisters, 56 N.M. Order Ursuline imprudent upon in acting it. Hobbs, 1052; City of Williams v. P.2d years A child of thirteen 765; age P.2d Sanchez v. 56 N.M. *12 mentality 346; year old, a ten of 259 P.2d Zamora with is Gomez, 57 N.M. years, Co., usually of tender a term P.2d a child 59 N.M. not & Korber v. J. applied years children under thirteen to 569. álé quickly It is ger
of is he an adult. more age, promptly but neither acts more that than another knowledge a matter common to avoid it does not of establish maturity a stage physical at mental as matter of law negli- which that latter is and gent. the individual is varies with reached many It cannot dependent
is factors. We conclude it that was for the accuracy, mathematical he determined with jury, pertinent in view of all considerations not universally recognized that it is but it is maturity, age, intelligence, experience of a Until thirteen. age at the of reached forth, and so to decide whether or not the maturity stage reached the of has minor plaintiff guilty contributory of negli capable using of him be showing of to gence charged, as and that the right court adult, his prudent reasonably a judgment of fully question jury submitted this by the same measured conduct is not to be proper under instructions the law. but person, as that of a matured standard plea finding against contributory experience chil- as judgment and such negligence, and the evidence was sufficient expe- intelligence, ages, dren similar jury. to sustain conclusion under judgment would use rience and Am.Jur., in 38 circumstances. As said point argued Under four it is that Negligence, Section 205: instructing erred jury court that passed the that a child has company “highest fact “The owed the not warrant degree” fourteen does age of agree care. We not do longer apt it no be is counsel. belief reckless. daring, thoughtless, It is long fundamental that so the standard Moreover relationship as the passenger and carrier is, judged, child conduct existed, upon it was incumbent the carrier - conduct of child same degree highest to exercise the of care in experience, discretion, capacity, age, safety promoting passengers. its displaced knowledge, should be duty We take therefore that it of adult conduct from
by the standard company plain discharge of the bus the child whose fact alone tiff, passenger, place safety. at a question is over fourteen conduct obligation fulfilling It not be its would years old.” discharge him a where he subject dangers unusual be from vehicu disputed per be that all cannot It alike, equally But it is well settled and the fact lar traffic. constituted aré sons that, oppor- affording after reasonable may recognize a threatened dan- one
415
tunity
safety,
in
the carrier is not
alight
instructions Nos. 18 and 27. As to instruc-
injuries resulting from inter-
tion
18
liable for
No.
it is
(1)
contended
there
vening causes.
presented
any
was no evidence
of
imminent
peril or of an emergency;
that it
(2)
a com
As to what constitutes
failed to limit the
emergencies
doctrine to
highest
pliance
duty
with the
to observe
not
by
injured person’s
created
own con-
safety
pas
its
degree of care for
of
duct.
depend upon its
each case must
sengers,
Instruction No. 18 reads as follows:
circumstances.
surrounding
own facts and
“You
bar there is
are instructed that if
think that
the case at
We
James
minor,
Thompson,
com
Patrick
by
the bus
evidence that the driver of
a
a
degree of care
sudden
pany
emergency,
did
such a
not exercise
caused
defend-
place
to the
negligence, placed
position
towards
in reference
ants’
the cir
discharge
bus and
peril
of his
from the
imminent
to himself without suf-
attending it.
cumstances
ficient time in which to determine with
certainty
pursue,
the best course to
he is
in the accident case of Cavazos
heldWe
not
accuracy
held to the same
judg-
Lines, supra
Bus
N.M.
v. Geronimo
[56
required
ment as is
of him under ordi-
passenger
866], where
247 P.2d
nary
pre-
and he is
circumstances
of the
discharged
gravel shoulder
recovering
injuries
vented from
attempt
highway and in his
to cross the
damage
himself
if
an accident oc-
that,
fatally injured,
long
same was
“So
though
curred even
a course of action
relationship
passenger
carrier and
as the
pursued
other than
might
that which he
passenger
exists the carrier owes
judicious, provided
have been more
degree
safety
care for his
highest
ordinary
exercises
care in the stress
relationship
safely
until he is
such
continues
of circumstances to avoid an accident.
conveyance
discharged from the
of the
may safely
carrier in a
where he
experience
age,
“The
intelligence
remain”,
holding.
and we reaffirm that
Thompson, minor,
Patrick
if
James
Lagaly,
Cir.,
Co. v.
144
Baker &
F.2d
you
find he was confronted
an emer-
344,
417 “* * * that, opinion bodily injury It our serious to him. When- is appears disclosed second reasonably under the circumstances ever it to a en- evidence, appellant person, and circumstances facts duty knowledge, person that a zvithin his titled instruction as to an suddenly con- pursuing probably such course imposed upon him when pursue end, have will peril. courts then in Our such fronted event, person rule the second frequently announced is held to created peril, knozvledge have position peril one in right doctrine, think, other. This has we negligence, his own clearly to be used means deducible many from the make a choice of deci- not held subject sions on the peril, and he is to avoid discovered ** ** peril, ours.) (Emphasis (Emphasis ours.) Prosser, Ill.App. 323 also, See, v. Mazanec proposition As to might two it be Motor 489; 652, and Owen 56 N.E.2d alone, said instruction standing Adm’r, Ky. Russell’s Lines v. Freight subject criticism; be but in the 708, 795, 709. 86 S.W.2d immediate connection with this instruction Ry. Galveston, & S. A. H. In the case of jury the court instructed the that “there Tex.Com.App., S.W. Wagner, v. Co. has been evidence in this case to the effect court said: Jimmy Thompson got off the bus *15 mat- “Pretermitting through consideration of the rear door without operator the bearing the issue of opened evidence of the having door, ters of bus the and contributory negligence, you which issue if are operator satisfied that the Bal by jury against the the linger open was resolved did not the door at time the error, we shall assume for plaintiff Jimmy Thompson bus, got your the off then purposes Wag- case that Miss of the should the verdict be for the defendant.” contributory guilty negli- ner jury Moreover the re- was instructed law, matter and gence, shall as a peatedly upon and stressed it be- if exclusively attention direct our to the contributorily lieved that the peril. of discovered issue negligent and a negligence that such person a peril, for to be in “In order proximate injury cause of his he could not necessary bodily injury it is recover, probability that there is no so certainly by be suffered will him. He the could jury have been misled because peril pursuing whenever he is is negligence “without the the words probably which will course terminate minor” part of were not used the in said in- 41á to 57 N.M. this court establish the law Compton, the to effect v.
struction. Cf. State that it error in is 227, 235, 257 charge the trial court to P.2d 915. upon issues are neither by raised 27 is: No. instruction to The criticism as pleadings by nor the evidence. Did in which situation (1) only that the factual emergency issues of sudden im- plaintiff could peril an imminent peril arise minent from the evidence in this been, if he had have arisen would have case so as to charging warrant the court in alighting as he was danger just been in jury thereon? We think that these panic, he ain sudden the bus. Then from clearly issues arose from evidence as way and been wrong might have dashed record, question indicated for the do not pleadings injured; (2) jury. determination of the doctrine. peril imminent the issue of raise clearly lays produced We the evidence conclude that the court And that did not com- charge to prejudicial mit absolutely no foundation in charging jury error upon subjects doctrine. emergency on such of sudden jury peril.
imminent one, number proposition As to the company point Under six bus v. Kansas of Gott in the case held complains judge because trial refused 830, Co., Mo., that: 222 S.W.
City Rys. jury inspect the where it allow is not absolved carrier “The very house. was in a lot close to the court degree of high this liability, nor from assigned ruling. this Error passenger merely care, because already bus door mechanism had very in the act injured while explained fully to the been described very spot or mo- nor at alighting Testimony received jury. was offered and alighted when he where and ment opened door without that the bus could be * * ours.) (Emphasis under the the use of a lever control bodily pres using extreme law, rule motorman this is sound believe We against sure door. Permission have approve the same. we therefore jury was within view the bus the sound proposition As the second judge of the trial and denial discretion court that the erred this urged re it is request an was not of discre such abuse emergencies and sudden im spect Lines, because Limited, Truck et al. tion. Western pleaded by plain were not peril 997; minent Berry, 52 78 P.2d Ariz. Wil v. *16 Co., issues did not arise that the City from Public tiff and Kansas Service liams v. 41; needs no statement It from 78 P.2d Nelson v. evidence. 147 Kan. 419 al., Belcher Lumber Co. et leg, Ala. and some seizures. If it inis cer- So. 808. areas, tain one wouldn’t know it. “Q. Well, now what epilepsy? Finally, defendants assert “the An irritation of up those cells there? jury $54,000.00 sup
verdict of the is not is, A. type yes. One ported by the evidence and was the result “Q. What is type that? A. One passion, prejudice sympathy: There epilepsy, the kind that after occurs trial fore a new or a substantial remittitur injury. should be ordered.” “Q. injury An type? of this A. summary plaintiff’s A injuries brief necessarily, Not any injury but that will through as follows: Fracture the base of produce convulsions. skull, with concussion and contusion to Well, “Q. Doctor, period over what Hemorrhage the brain stem. from left ear. of time is danger there of such a condi- bleeding from left ear Profuse and throat. tion, injury type? an of this A. seepage through
Blood throat stomach into mean, You development (in- of — lungs. Considerable cloudiness in the terrupted) totally lung. Plaintiff was rendered uncon- “Q. That is (continu- correct. A. May 2nd, 28th until scious when June ing) seizures ? began saying a few words that did not 9th he talking fairly connect. On “Q. June any condition, Or other that is really mentally well. He did clear until Statistically, not normal. A. most up around 13th. Was June June following seizures injury, head are days eighteen 15th which was about after going develop year, within a about injury. discharged Was from the hos- per them, 87 to 70 cent of we are pital on 18th. June always leery about a seizure developing years over three after an injury. In Morgan, neurosurgeon, Dr. Clinton W. words, up other I think years. three plaintiff by the called testified as follows: “* * * q_ Ancl what does the “Q. I your If understand answer, then, Doctor, they may occur as much pull tissue do? scar Does years as three injury? after an A. cell, of the brain balance or the brain Yes.” It may, tissue ? A. contracts down. It areas, symptoms, cause
in certain Stewart, A. B. psychiatrist, Dr. called is, up (indicating), if here by plaintiff it is it is testified that he had examined going cause weakness of an arm or approximately seven and a half *17 any so. I didn’t find he was un- disease him. that injury; after the
months gave hurt, good checkover, I him a any- physical or got he how him tell able to I accident; anything didn’t find wrong had that he no with thing about except boy, that is—his face shows experience. that memory of trauma, the result of his and one side ** “* Well, you what do Q. nose, his eye droops, one lid one that, you think Do Doctor? by mean eye droops and one more than the other. ? mentally worse get or progress he will His opposite side, reflexes on the or the A. opinion. best your us give Just side, but, left deviate a little much, is. exactly he may Well, remain he but little. possibilities of a limit to There is “Q. What does that indicate? A. he now recovery, what than other any That is a result of the damage got he very exposed is He also shows. here, through stock, this brain where other developing possibility of serious all the fibers come down and cross over complications, later. side, on each to control the opposite what, ? A. Doctor “Q. Such as side. Also, one. Well, particular epilepsy, a “Q. Will that remain, condition of the part that atrophy of just an Doctor, or will get that better? Do deterioration, and more —more brain, opinion you have an on that? A. It side, the down changes on personality will remain. any. improving “Q. That is something per- that mean, Doctor, Well, you “Q. do Yes, manent? A. sir.” damage to that hemorrhage or Halvorsen, Dr. Martin H. psychiatrist, result in additional may tissue brain defendants, called was of a different A. Yes. scarring of the brain? opinion expressed Stewart, than that Dr. period time, what “Q. And over except epileptic as to seizures. He testified experience? Oh, A. it would your as follows: period time, long gradually. take “* * * Q. Doctor, Now seizures Months, say, may or I be two epilepsy sometimes are the result years. three ’or damage, brain isn’t true? A. [******] Yes, sir.
“Q. Doctor, “Q. you any You background Do have believe. injury experience, is due to sustained reference the time May Oh, takes, yes, person usually go 28th? I A. think which a epilep- jury an or become into seizures and that these it was not the result of passion, head? tic, prejudice to the A. after blow and sympathy. of that studies
There have been several Considering the nature and extent of patient who—the ma- question, and the plaintiff’s injuries disability, pain going who are jority individuals suffering, the possibility of developing epi- so, the first epilepsy, within develop do leptic seizures, his age and life expectancy, injury.” months after twelve present power purchasing dollar, *18 we cannot say as a matter he testified: of law that cross-examination it is On excessive. * “* * Q What do you think A. I felt him? with Other the matter errors assigned are and discussed concussion, and but we suffered
that he had consider them without merit. brain, was hav- The cause having of been a contusion fairly tried, the post judgment commonly con- call is we affirmed with ing what costs and the cause remanded to the syndrome. District Court cussion to Mr. Sj< “Q. Now, Akin’s [*] I [*] understood, question, that [*] in [*] response you [*] be- instructions that the defendants and the surety on their supersedeas bond. if render judgment against is It so ordered. kept be under he should ob- lieve that years? at least one or two servation Yes, sir. COMPTON,
A. J.,C. concurs. may epilepsy develop, “Q. And even SADLER, J., specially concurring. years following of a number serious Yes, may. damage? A. it
brain McGHEE, J., and FEDERICI, J.,D. dis- Doctor, then, you “Q. wouldn’t So senting. any statement with to make cer- wish boy may develop tainty, not that this SADLER, (specially concurring). Justice mean, taking I the time epilepsy ? concur I in the result but not in all that injury of into con- the seriousness opinion in prevailing is said by way of That I right, ? A. would sideration observation on facts in evidence. Much certain make no statement.” impresses of it me as dictum, obiter not es- carefully examined We have the entire to a sential determination of the basic is- opinion are that there record is sub- in jury sues the case. The ample justi- had support evidence stantial verdict fication in the evidence for finding primary and, by the part instruction he aware an as was so negligence on defendant’s token, absolving emergency done acts in an same resolving so In proper. have been contributory negligence. involved however, there issue, this Inc., Line, supra, Bell In Feck’s Adm’r v. than facts balancing of finer it page is stated at 144 S.W.2d negligence. primary question of defendant’s “only applies emergency rule sudden instructions, when in the Prejudicial error one be- where the discloses that evidence convincingly whole, es- is not viewed as emergency put and was came aware an ex- an claim of does Nor tablished. rapid to a choice of alternative courses of up when stand verdict award cessive action in order to avoid the accident” plaintiff’s in- desperate character jury might reach the conclusion that weight. full given juries adopted course of action was an unwise result de- in.the I concur Accordingly, (Italics Court.) one. In the fol- affirmance an directs clared lowing paragraph is stated: reviewed. judgment “In instant case nothing there is in the evidence to indicate that the de- (dissenting).
McGHEE, Justice ceased, Feck, erred realized court ever he trial opinion the I am peril dan- confronted imminent with a sudden any instruction giving emergency. As far was to as the goes instruction evidence effect ger. may not have seen instructions on truck with weaken down water *19 he collided. The introduce a evidence wholly and negligence contributory he fails to show that became aware case. into issue false emergency put such of an as to him to lies the en- this view for My reason rapid between a two or choice more Jimmy was aware evidence of tire lack action in courses of order to avoid the did, or refrained from he danger or that of * * collision, not otherwise anything he doing, danger. There because done have plaintiff in that case had The asked for an directly on this cases but two appear be on acts done in a instruction sudden emer- Matas, 1933, Hanson v. they are: point and for the reasons gency, but above stated the 505, 93 275, N.W. A.L.R. 249 212 Wis. ordinary contributory held the neg- court Line, Inc., Bell Adm’r v. 546, Feck’s and together instruction with the ligence ordi- 483. Ky. 144 S.W.2d instruction, was nary care sufficient —that emergency held on sudden Hanson case it was the in- instruction In the an person danger; proper. not aware jured McGHEE, absolutely J., FEDERICI, So it is in this case. There is J.,D. any Jimmy concur in no evidence that was aware amendment opinion hut vote granting which for danger or he saw the truck even rehearing, a reversing the judgment the collision. hit him until instant and granting a new trial. riding the witnesses of all of evidence Jimmy who saw leave is the bus opened demanding the door
he he was stand- open, Jimmy,
when who it did step, jumped running off
ing on lower
fast his head turned back step boy on the above
until
heard
he
out!”;
too
call,
then it was
late.
“Look
pany, corporation; Tidewater Associat Company, corporation; ed Oil Odessa Motion Rehearing On *20 Co., corporation; Natural Gasoline Tre Co., Rehearing denied. corporation; bol Oil Warren Oil