*1 WILLIAMS, Plаintiff-Appellant, Dorothy COBB, Defendant-Appellee. (William)
Bill
No. New Mexico. Appeals
Court of 24, 1977.
May Sherman,
Benjamin M. Sherman & Sher- man, Deming, plaintiff-appellant. Triviz, Cruces, Las Edward E. for defend- ant-appellee.
OPINION LOPEZ, Judge. plaintiff filed suit for damages resulting
personal injury from a collision Deming, intersection in New Mexico. jury returned a verdict for the defend- ant and the trial court entered judgment appeals. accordingly. We re- verse. asserts reversible error
regard to several which were refused, some which were given, and relat- (1) following issues: contributo- (2) negligence; (3) ry emergency; cause; independent intervening *2 аssumption permitted to a motorist travel- the particular intersection. We will refer thoroughfare. ing on a to the unfavored or servient secondary street the “intersecting” street. We will the following: The record establishes appellant’s address the last point first. collision between the and the de- cars occurred at the fendant’s intersection Assumption Permitted to a Motorist on a Street, a Spruce thoroughfare running Through Street west, Street, east and and Iron an intersect- The contention is that the court running street north south. erred There failing tо instruct the jury as to sign stop sideways was a which was turned as- sumption permitted to one intersection; traveling corner northwest through street. The sign supposed was to face north to tendered two stop instructions: traveling traffic south on the intersecting
street, Iron Just prior you Street. to the colli- “If find that Dorothy Williams was sion, traveling on a driving easterly street and did not speed direction at a of between 22 to 25 a driver see whether approaching the in- per plaintiff, hour. The a long miles time tersection with the through street did or Deming, stop was familiar would for resident with not the through street, you and knew that she find desig- street must that Dorothy Williams was right-of-way. The contributorily nated defendant was not negligent. But if [sic] southerly his automobile in you di- find that Dorothy Williams was on Iron at a speed rection Street of 25 miles aware the driver approaching the hour. The per defendant unfamiliar intersection was going community. “stop” with the The defendant stop sign did at before entering intersection, not see the was turned must find that Doro- sideways only edge so that its was visible. thy Williams a duty to take steps to plaintiff nor Neither at stopped collision precautions avert a and to take intersection. record reveals with the dangers commensurate reason- the view at the intersection was partially ably be anticipated under the circum- obstructed, both cars entered the intersec- stances. timé, tion approximately at the same nei- Blashfield, “3 Automobile Law and Prac- speed, at ther excessive and the accident p tice 114.102 Sec. 229” too happened quickly party for either are instructed “You automobile avoid collision. driver, knowledge of location question presented ap- signs, this case to rely, when crossing pears intersection, to be one first impression upon in New the assumption that question Mexico. is well anyone summarized same, will observe (1960), 74 A.L.R.2d which anno- and will not undertake against to cross Therein, many tates similar cases. them need driv- anticipate that a question was stated as this: er will enter the intersection in violation stop sign. of a effect, any, a missing,
“What
does
displaced,
stop sign,
or obliterated
Crowdus,
“Mayfield
considered Co., 235 So.2d case is distinguishable. Insurance Schmit Travelers Ory said: court found (La.App.1970) each degree used party the same of caution and Louisiana Court . It [the party, using the accident occurred each Fontenot Circuit in the Third Appeal *3 care, rights- relied on presumed reasonable Hudak, (La.App.1963)] 153 So.2d of-way. The defendant in Schmit been observed right-of-way. In the instant general would have clearly plaintiff standing, only was not on the recovery, Martin v. citing entitled to been street, genеral right- but she also had the Barros, Cir. (La.App.3d 142 So.2d proceed to of-way. explain We this distinc- Farm Mu- 1962); and Hernandez State tion. Co., (La.App.3d 128 So.2d tual Ins. went on 1961). Cir. We note that there exist two distinct say: on the rights-of-way highways New a case is of law in The first often referred to general rule Mexico. as
‘The misplaced, statutory rule or general right-of-way. been stop a where removed, exemplified by 64-18-27, § or obliter- is destroyed N.M.S.A. improperly (2d pt. 1972) Repl.Vol. pages in 74 A.L.R.2d at which is set ated out as states: reads follows: and boulevard, approaching entering “Vehicle or inter- “Where (a) The driver of a vehicle ap- highway has been arterial or section. — an proaching yield intersection shall designated appropriate properly way to a which has right vehicle en- erected, it ordinarily signs have tered the intersection from a different status preferred has been held highway. merely be- lost highway cause a stop sign is misplaced, improp- “(b) When two [2] vehicles enter an removed, destroyed, highways obliterated. from different or intersection at erly
approximately the same time the driver left yield of the vehicle shall that a motorist on an “The rule way right. vehicle on the right of preferred protected by or road arterial “(c) way right rules declared stop signs is entitled assume that (b) (a) and are modified paragraphs at intersecting vehicle driver through highways otherwise as here- obey law stop servient stated in article inafter right way has been held yield [64-18-27 or [Emphasis inapplicable stop 64-18-31].” added]. rendered ordinarily the mo- sign which should face clarity we will refer this as side street has been mis- torist general right-of-way. destroyed improperly or removed.
placed, applies general right-of-way only assumption on the right But neither street at an when intersection is may be where driver on arte- lost Bunton v. street. exercising himself due road is not rial right-of- The general crossing approaching or care while provided by can as way be modified 64- § intersection, and motorist arte- 18-27(c), supra. The modified liable, will be highways held rial modified, designat- often referred to as a course, resulting from their for collisions ed, controlled, preferential or to exercise due care toward traffic failure right-of-way, A creates one such ’ " [Emphasis road.” 64-18-29, (2d in § as stated N.M.S.A.1953 added] 2, 1972): pt. Repl.Vol. entering exception stop yield have taken “Vehicles or inter- cases
Several
rule,
right
way
relied on
by
one of which is
section. —A. Preferential
general
Jansen,
may
247 Wis.
intersection
by
be indicated
defendant.
an¶
m
yield signs
as authorized
intersection with no apparent right-of-way
Code.
the Motor Vehicle
and collided with a vehicle that under nor
mal
Except
proceed
when directed to
circumstances
“B.
would have had both the
sig-
police
preferential
officer
traffic-control
right-of-way if proper controls
nal,
approaching
of a
every driver
vehicle
had been
place
as well as
stop
indicated
intersection
right-of-way. See Funderburk v. Temple,
required by section 64-
sign shall
Alexandria, 324
(La.App.1976),
So.2d 924
denied, La,
(1976),
that the motorist on
street
failing
prop
to maintain a
“d.
In the exercise
care
negligent
was
of reasonable
plaintiff
whether the
Regardless
inter
caution
er lookout.
should have ob-
or should
secting
motorist knew
that the
served
so situated
sign, he
entered the
be ineffective
known of
as to
as a
the defendant
and, therefore,
relied
Emergency
not have
Sudden
motorist
way.”
gave
The court
re-
N.M.U.J.I. Civ. 13.14
garding sudden emergency.
there is
argues that
Plaintiff
instruction.
giving of this
justify
does
object
argues
as being
incorrect statement
requires
of the law because
law;
misstatement-
evi-
argues that
to examine the
justify
a driver
did not
giving
dence
of the in-
see
streets to
аlong intersecting
struction.
proper place.
their
signs
Assuming, arguendo, that there was
Purcell,
emergency, according to
Seele
case,
although
(1941),
the Su
stop sign,
there was
existence
knew the
Court, quoting
preme
Motor
from
C.J.
the sign
knew
no evidence
§
Vehicles
stated:
is entitled to
party
A
sideways.
“Where the automobilist created the
legal
on all
theo
jury instructed
have the
brought
emergency,
about
perilous
by
supported
case which
ries
situation, through
own
his
negligence,
Cortez,
evidence. Sandoval
substantial
liability
avoid
for an injury
of the instruction
supra. This
his
acts were
ground
done in the
sup
is not
erroneously given because it
emergency.”
stress
law.
either
evidence or
ported
*5
we were to agree
Even if
that there was an
require
We
that to
the driver on
believe
emergency,
there was
emer-
evidence the
the
the condition of
through street
know
was
gency
negli-
caused
the defendant’s
is a
along intersecting streets
therefore,
advantage
take
gence;
of
law.
correct rule
the
The
misstatement
emergency
of
instruction. 80 A.L.
a sudden
the
law,
person
of
5,
(1961).
Any emergency was a
R.2d
justifiably
on others to
can
and direct result of the defendant’s
natural
law),
already
been dis-
obey the
(or
entering
before
the intersec-
failure
opinion.
part
the first
of this
under
cussed
neg-
The defendant was
“without
tion.
Jennings,
Bunton
supra;
Barbieri
See
part.”
on his
We believe that
ligence
Crowdus,
Mayfield v.
supra;
emergency
instruction
(1934);
3 A.L.R.3d
given
it
served to con-
(1965).
jury by injecting
false issue.
fuse
Galentin,
Embrey
418 P.2d
objects
also
of
3.1, given in
no.
Civ.
N.M.U.J.I.
Cause
Independent
Intervening
2:
hand,
“If,
find that
other
defendant,
of
the trial
request
At
any
of the claims
to be
one
gave instruction no. 20:
court
prоved
by plaintiff has not been
proved
act
be
negligent
or omission cannot
“A
(or
any
af-
one of
defendant’s
injury
cause
proximate
to be
of an
said
proved),
defenses
been
firmative
if,
time
act
negligent
between
verdict should be for the de-
your
injury
time of the
or omission
fendant.”
‘independent
there occurs an
question
tervening
injury.
cause’
such
is
argument
without merit.
Appellant’s
is
'by
adopted
‘independent intervening
cause’
Supreme Court
order
“An
The
instruction;
interrupts
we
or omission which
are bound to fol-
an act
following
events
Supreme
sequenсe
order on
use
natural
low the
Court’s
omission,
act or
This Court is
first
turns aside
approved instructions.
from
these
course, prevents
State v.
of the
abolish the instruction.
its
fulfillment
not free to
probable
origi-
Scott,
(Ct.App.)
result
N.M.
the unforeseeable stands law to note that attorneys sub- injury cause of the and dam efficient mit non-U.J.I. instructions to bolster a failed, however, age. The defendant has claim relief defense, affirmative present evidence that act broke submit instructions that are clearly *6 events, sequence natural of caused acci inapplicable, and weave of theories law that dent, thereby negligence and insulated the juries astray. To lead invite er- reversible original keep tortfeasor. Failure to puerile. foolish and plead ror is To running stop sign produc and a lookout a plea error” is to sustain ver- “harmless a result, v. Lopez ed a foreseeable Southern jury dict of the without the unknowable (10th 499 767 Company, Pacific F.2d Cir. impact its on jury. fact of The use of proximate 1974), was the cause of the and of “harmless doctrine error” in the sub- Haddock, v. accident. Sellman of erroneous mission instructions to (1959). v. 416 See also Val lot 345 P.2d jury means that the appellate judges are Touchet, (La.App.1976); 687 Mon So.2d returning verdict, their own preceded by, of, Dept. Highways, independent dello v. State So.2d but jury’s verdict. This denied, La., (La.App.1976), appellate upon verdict founded a knowl- edge learning (1977). jurors and their So.2d discussion of the giv- erroneous instructions We believe that the submission of Appellate en. judges are able to and do created a disregard improper the instruction false issue matters, which is*impos- but it sible to know and that the jury may jury misled confused because did. negligent, have found the defendant but Experience taught jurors me that are could have considered condition of the people cross section of community in the justify excusе or the negli average intelligence, sincere in their Embrey Galentin, gence. supra. See It devotion to this service. Instructions give was reversible error this instruction. analyzed, read and discussed and debated. Kelly Montoya, See 470 P.2d given Each bear does (Ct.App.1970). jury. reasons, verdict For these we way to examine on an try and avoid revers- intersect- adopted U.J.I. have they to see if legal properly instruc- in heed the Jurors error. ible and expert, position and what effect the judge, place aby given tions have on a respect for his mоtorist into the appropriate to him accord from an arterial wisdom. legal superior the defendant complaint street. in participate Attorneys who make, he should have pointed his finger im- read, study and know should trials plaintiff. not City, improper instructions and non-U.J.I. pact jury. to a submitted right-of-way is not A U.J.I. exclusive. lose the instructions and duty on to exercise the battle reasonable win awith fair trial. comport not collision when she does care to avoid became war the fact that defendant aware of not would error the court appeal is based This yield Langenegger instructions, and its failure to three giving McNally, requested instruc- two give placed plaintiff burden was This in the tions. 1(a), (b) instruction. Instruction above (c) plaintiff to keep proper look affirma- defendant’s A. Instruction out, speed. her De control car control was erroneous. defenses tive fendant could ask for no more. jury that: instructed Furthermore, U.J.I. 3.1 contains a note: contributorily plaintiff simple Here set forth form such af- cannot recover in that: negligent defenses firmative which * * are supported * * * * evidencе such as by the exercise of care In the reasonable d. contributorily negligent ob- plaintiff should have caution in that: stop sign was that the so situated served (1) The defendant was entitled to the to be ineffective right way, failed and, not have relied motorist yield him. way. keeping was not a prop- effect, it told the avoid a collision. er lookout she should 1(d) supported by any Instruction was not seen evidence. Defendant to the defendant. ineffective 3.1, says: Directions On Use explain by process what of mental does important most single know reasoning plaintiff could what effect *7 lawsuit, and and court can have on stop sign edgewise turned particular give counsel should attention driving into the intersection at defendant to it. per jury hour. The well 25 miles could plaintiff, in that the exercise have believed counsel flagrantly When and abuse care, duty some time of reasonable directive, cautionary they begin must collision, to slow down or prior clear, over again. Being all the trial mani- edgewise observe the turned and palpable error on fest and one of crucial andntersecting to see what effect case, it is prejudicial issues in error. edgewise would have intersection, plaintiff’s 3.1 into the B. on a motorist U.J.I. burden confusing. perhaps yield proof and de- to drive down require plaintiff would objected a portion of U.J.I. street to make the determination fendant’s it misleading 3.1 because was and it led the of cause and effect. plaintiff jury duty believe prove negligence rule aware of the road all acts of the defendant in- We are not high- act requires a driver on an arterial of one of negligence. that stead reads, instructed, jury and 3.1 C. U.J.I. The sudden emergency instruction was erroneous. that: plaintiff case, has prov- the burden instant the facts show that defendant did not have a choice be damage sustained ing that and that [she] two courses of tween action take to avoid claimed of negli- one or more acts the collision. “The sudden emergency doc the proximate cause thereof. gence applies to the trine choice an actor makes ****** confronted after peril through no fault of his own.” Martinez v. that you plaintiff If find has 529, 565 Schmick, (Ct.App.) 90 N.M. required those proved claims of [her] May decided (Sutin, J., dis your . then verdict should be for senting). case, Under the facts of this giv plaintiff. 13.14, ing U.J.I. Sudden Emergency, was hand, If on the other you that any find reversible error. required one of the claims proved to be D. requested Plaintiff’s instruction on proved has . not been contributory negligence and “as- your verdict then should be for the de- properly were sumption” refused. [Emphasis fendant. added.] Plaintiff’s instructions “as- only Plaintiff made one claim for sumption” are set forth in Judge Lopez’ relief based several acts or claims оf The first one opinion. says: must “[Y]ou jury negligence. The instructions were Dorothy find Williams was not contrib- jury They usually room. sent utorily negligent.” The error of this in- analyzed. The average read and mind of a struction needs no comment. The second that the juror could conclude must provides one had a “upon assumption” claimed “those acts re prove see the would her,” prove and if she does not undertake quired intersection, to cross the and need not antic- the claims” she “any one of cannot recover. ipate that a driver will enter the intersec- example, the word “cloud” means a in violation of a stop sign. tion spot forehead a horse dark be eyes. To a tween can mean a These not U.J.I. instructions and they properly were refused. of definitions. There is a host difference Uniform jury in existence for over a “claim” and a “claim for relief”. between Yet, years. eleven trial attorneys and dis confusion, the concluding avoid judges fail to trict read 51(c) Rule (e) U.J.I. 3.1 should read: 21-l-l(51)(c), (e), (Repl. N.M.S.A.1953 [§ find has 4)]. 51(c) says: Vol. Rule . . [T]he claim(s) “the proved relief” instruction shall be used unless under your . . thеn verdict of her the facts or circumstances of the particular plaintiff. for the should be published Jury Uniform Instruc- hand, you If on the other find that tion is erroneous or otherwise improper, “claim(s) . for relief” the trial court so finds and states of record its reasons.” . . The trial proved your not been attorney *8 the district should know that be for the non-U. verdict should defendant. nuisance; J.I. instructions are a that the [Emphasis added.] submission of them to the jury can be re- applies also to affirma- suggestion versible error. tive defenses. 51(e) Rule allows attorneys request to the believed that had to non-U.J.I. instructions a subject on like alleged all prove acts products liability where applicable the defendant set forth in the instruc- subject struction on the See, is available. tion, it have affected the verdict. could U.J.I. 16.5. products Instructions on liabili- 646 Judge Lopez agree with about the Supreme Court rules drafted
ty
right-of-way
application
their
in this
will
be made effective.
soon
Committee
case,
agree
I
it was
that
error for
through
on a
that a driver
recognize
We
trial court
refuse the first of the
a
that
to assume
right
has
subjеct,
on
be-
tendered
intersecting stop road would
on the
driver
the instruction does not state the law
cause
stop
to a full
before
by coming
obey the law
quoted
last
correctly. The
sentence
from
51
highway. Bunton
entering the
Lopez
up
sums what is miss-
Ory by Judge
right
But
P.2d 168
177
N.M.
ing from
tendered instruction:
“assumption” is fore-
upon this
instruct
right
rely
the assumption
“But the
on
adopts
Court
Supreme
until
closed
where the
on
may be lost
driver
the arte-
“Assumption” theory.
this
on
instruction
is not
exercising
rial road
himself
due
case,
in this
to avoid
argument,
matter of
crossing
care while
negligence.
contributory
intersection, and
motorist
arte-
liable,
will
highways
be held
rial
“intervening cause” instruction
E. The
course,
resulting
for collisions
from their
erroneous.
to exercise due care
failure
toward traffic
cause” instruction
“intervening
[Ory
road.”
v. Trav-
on
re
opinion. To
Judge Lopez’
appears
Co., supra.]
elers Insurance
instruction under
submit this
quest
gives
Neither of the tendered instructions
argue
case is nonsense.
of this
facts
adequate
indication that
edgewise, is an
sign,
stop
that
subject
duty
ordinary
care
still
inter
intervening cause of an
independent,
right
rely
having
despitе her
It does
is twiddle-twaddle.
collision
section
that
she saw
so
if
or should
right-of-way,
require
authority.
citation
approaching,
car
she
seen defendant’s
have
try
avoid the collision.
duty
HERNANDEZ, Judge (specially concur-
of the first
The second sentence
instruction
ring).
this,
but
error
makes
stab
disagree
in the result.
I
I concur
already
committed in
first sen
been
one,
Lopez
Judge
point
tence,
on his
“As
with
which directs a verdict
defendant,
regard
sumption Permitted to a Motorist on a
without
did not see
she
seen him. It
Through
The cases on
should have
point
to whether she
Street.”
triаl court to refuse an
jurisdictions
generally
in accord not error for
other
incomplete,
which is
erroneous
Co., supra.
Insurance
Ory v. Travelers
with
Stewart,
LaBarge
repetitious.
Judge Lopez’ analysis
with
agree
do not
I
(Ct.App.1972);
P.2d
N.M.
Jansen,
that Schmit v.
Wis.
denied,
(1972);
them. Rule § ((Repl. Vol.
l-l(51)(c), N.M.S.A.1953
1970)) that “the instruction provides unless under facts or
shall be used of the particular case the
circumstances Jury
published Uniform Instruction erro- . improper neous or otherwise . purpose instructing jury is to Mexico, of New STATE plain that it make the issues is to determine Plaintiff-Appellеe, Galentin, Embrey v. and clear. Changing 418 P.2d RUUD, Defendant-Appellant. Kathleen “any one of the claims” to phrase “any make No. 2 claim” would Instruction less No. 2849. likely jury. to mislead the Court of Appeals of New Mexico. three, Emergency.” Point “Sudden June Lopez Judge What intends to hold on this clear. He point says, is not emergency
there was evidence the negligence;
caused the defendant’s advantage take of a emergency
sudden instruction.” This court
has held twice recent months that jury question regard
existence of a party offering
whether the sudden
emergency instruction contributed his creating
own emergency giving
is not a bar to emergency sudden
instruction where there is evidence to sup
port Schmick, it. Martinez v. (Ct.App.1977);
Jennings,
(Ct.
App.1976). the court rule as a prior negli
matter of law there was creating contributed
gence which
emergency emergency can in It be refused. is not clear wheth intends to as a Judge Lopez
er hold matter law instant that defendant prior guilty negligence. I believe question proper
this was a emergency testimony
given. Defendant’s indicates possible two of action in
that he had courses emergency, to slam on brakes or his go
try to around car.