State ex rel. Los Lunas Hospital & Training School v. Montgomery

OPINION- WOOD, Judge, Court of Appeals. ■ The appeal involves an intersection accident. Plaintiff’s driver, going north, stopped for a stop sign, and then had proceeded some twenty feet into the intersection when he was hit by defendant’s car. Defendant, traveling east on a through street, was some sixty feet into the intersection when the collision occurred in its southeast quadrant. Plaintiff sued defendant for its property damage. It appeals from an adverse judgment, contending the trial court erred in failing to find that defendant was solely responsible for the accident. The issue is whether there is evidence to support certain findings of the trial court. The trial court found that defendant’s speed was thirty-five miles per hour and within the posted speed limit as he approached the intersection. Relying on Ortega v. Koury, 55 N.M. 142, 227 P.2d 941 (1951), plaintiff contends that the physical facts overcame this testimony. It is only where the facts testified to are utterly at variance with well-established physical laws and, therefore, inherently impossible, or incredible of belief, that they will be rejected. International Service Ins. Co. v. Ortiz, 75 N.M. 404, 405 P.2d 408 (1965). Defendant testified that he was driving thirty-five miles per hour. An unchallenged finding is that there were no skidmarks or any physical facts or other evidence to indicate any excessive speed of defendant’s automobile. Defendant’s testimony and the unchallenged finding are not at utter variance with the physical facts on which plaintiff relies. Those physical facts are: both vehicles were severely damaged and plaintiff’s heavy duty pickup was overturned. The situation here is one of conflicting evidence which presented a question for the trier of facts. International Service Ins. Co. v. Ortiz, supra. The trial court did not err in its finding as to speed. The trial court found that plaintiff’s driver proceeded into the path- of defendant’s car without' exercising due care. It found that after observing defendant’s car, the driver entered the intersection without yielding the right-of-way or in the alternative, that defendant’s car was approaching so closely as to constitute an immediate hazard. It also found that the conduct of defendant was not the proximate cause of the collision. In challenging these findings the plaintiff emphasizes the fact that defendant was intoxicated, and though his view was unobstructed, defendant couldn’t recall seeing plaintiff’s car before the collision. There was no obstruction to the view of plaintiff’s driver either. He saw defendant’s car when it was approximately three hundred feet away. He thought defendant’s car was far enough away so that he could “make it,” but “at the speed it was coming I guess I couldn’t judge that car.” After observing defendant’s car, and not knowing its speed, the driver never looked , at defendant’s car again. Looking straight ahead, he proceeded into the intersection with a heavy duty vehicle that “doesn’t have the pickup that some other pickup has.” Plaintiff relies on International Service Ins. Co. v. Ortiz, supra, and Beyer v. Montoya, 75 N.M. 228, 402 P.2d 960 (1965). In both cases the drivers entering the through street were successful in their claims. In both cases a right-of-way statute was applicable ; the statute involved here, § 64— 18-29, N.M.S.A.1953, was also involved in the Beyer case. (This section was repealed by Laws 1965, ch. 91, § 2, and a new § 64-18-29 was enacted.) It is not necessary to discuss the factual similarities and dissimilarities of Beyer, International Service Ins. Co. and this case. The results in Beyer and International' Service Ins. Co. do not require the same result here since in each case the result depends on the facts. In each case the appellate issue was whether the evidence supported the findings of the trial court. On the issue of negligence, Beyer 'states “ * * * While under the evidence the court might have concluded that Mrs. Beyer, as well as Mr. Montoya, were negligent, or that Mr. Montoya was free from negligence, in either of which events recovery would have been denied, it does not follow that the facts demonstrate negligence on the part of Mrs. Beyer as a matter of law, or that the court erred in holding that she was free from negligence as a matter of fact. * * *” On the issue of proximate cause, Chavira v. Carnahan, 77 N.M. 467, 423 P.2d 988 (1967), states: “ * * * Proximate cause is an ultimate fact — usually an inference to be drawn by court or jury from the facts proved. It becomes á question of law only when facts regarding causation are undisputed and all reasonable inferences therefrom are plain, consistent and un-contradictory.” Here, negligence and proximate cause were questions of fact, to be determined by the trial court. From the evidence, the trial court could find as it did ■ — both on the question of the driver’s care and the question of, proximate cause. We cannot say as a matter of law that the trial court erred in its determination of these issues. The judgment is affirmed. It is so ordered, CHAVEZ, C. J., and COMPTON and CARMODY, JJ., concur. NOBLE, J., dissenting.