{ "id": 2853215, "name": "Barbara J. HORROCKS, Administratrix of the Estate of Hazel Vredeveld, Deceased, Jack P. Clark, Lonnie Mead and Dora Mead, his wife, Plaintiffs-Appellants, v. Robert Edison ROUNDS, Defendant-Appellee", "name_abbreviation": "Horrocks v. Rounds", "decision_date": "1962-04-04", "docket_number": "No. 6833", "first_page": "73", "last_page": "90", "citations": [ { "type": "official", "cite": "70 N.M. 73" }, { "type": "parallel", "cite": "370 P.2d 799" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "45 N.M. 176", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1565145 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/45/0176-01" ] }, { "cite": "56 N.M. 677", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584730 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/56/0677-01" ] }, { "cite": "62 A.2d 630", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "191 Md. 712", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2254109 ], "opinion_index": 0, "case_paths": [ "/md/191/0712-01" ] }, { "cite": "58 N.M. 96", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587652 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/58/0096-01" ] }, { "cite": "66 N.M. 485", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2849133 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/66/0485-01" ] }, { "cite": "321 P.2d 1112", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2775856, 2776848 ], "opinion_index": 0, "case_paths": [ "/nm/63/0465-01", "/nm/63/0466-01" ] }, { "cite": "63 N.M. 466", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776848 ], "opinion_index": 0, "case_paths": [ "/nm/63/0466-01" ] }, { "cite": "102 F.Supp. 138", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 698730 ], "opinion_index": 0, "case_paths": [ "/f-supp/102/0138-01" ] }, { "cite": "64 N.M. 182", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5345665 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/64/0182-01" ] }, { "cite": "92 N.W.2d 878", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 0 }, { "cite": "5 Wis.2d 271", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8678207 ], "opinion_index": 0, "case_paths": [ "/wis-2d/5/0271-01" ] }, { "cite": "106 N.W.2d 151", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 0 }, { "cite": "361 Mich. 631", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1856874 ], "opinion_index": 0, "case_paths": [ "/mich/361/0631-01" ] }, { "cite": "68 N.M. 421", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2719519 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/68/0421-01" ] }, { "cite": "322 P.2d 833", "category": "reporters:state_regional", "reporter": "P.2d", "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "52 Wash.2d 22", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1008446 ], "opinion_index": 0, "case_paths": [ "/wash-2d/52/0022-01" ] }, { "cite": "66 N.M. 235", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848256 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/66/0235-01" ] }, { "cite": "67 N.M. 101", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714208 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/67/0101-01" ] }, { "cite": "68 N.M. 6", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718050 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/68/0006-01" ] }, { "cite": "69 N.M. 24", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2787056 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/69/0024-01" ] }, { "cite": "64 N.M. 163", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5344555 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/64/0163-01" ] }, { "cite": "67 N.M. 10", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715080 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/67/0010-01" ] }, { "cite": "44 N.M. 443", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566863 ], "weight": 4, "pin_cites": [ { "page": "447" }, { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/nm/44/0443-01" ] }, { "cite": "65 N.M. 474", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845419 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/65/0474-01" ] }, { "cite": "69 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2791301 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/69/0072-01" ] }, { "cite": "59 N.M. 400", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589305 ], "weight": 2, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/nm/59/0400-01" ] }, { "cite": "67 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2713920 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/67/0001-01" ] }, { "cite": "69 N.M. 262", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2787509 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/69/0262-01" ] }, { "cite": "68 N.M. 45", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718857 ], "weight": 5, "opinion_index": 0, "case_paths": [ "/nm/68/0045-01" ] }, { "cite": "69 N.M. 132", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2790772 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/69/0132-01" ] }, { "cite": "52 N.M. 9", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579474 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/52/0009-01" ] }, { "cite": "65 N.M. 440", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2847370 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/65/0440-01" ] }, { "cite": "66 N.M. 410", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2846909 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/66/0410-01" ] }, { "cite": "68 N.M. 191", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718681 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/68/0191-01" ] }, { "cite": "363 P.2d 365", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "69 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2791682 ], "opinion_index": 0, "case_paths": [ "/nm/69/0001-01" ] }, { "cite": "59 N.M. 33", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589267 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/59/0033-01" ] }, { "cite": "337 P.2d 290", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "53 Wash.2d 773", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1011257 ], "opinion_index": 0, "case_paths": [ "/wash-2d/53/0773-01" ] } ], "analysis": { "cardinality": 1287, "char_count": 35579, "ocr_confidence": 0.711, "pagerank": { "raw": 3.504860172924619e-07, "percentile": 0.8829842975401269 }, "sha256": "289bb64cb327e1e466fb8bd11d55f2266d54842c12055fae99122320040e329c", "simhash": "1:fffde61adb84c4fe", "word_count": 6342 }, "last_updated": "2023-07-14T21:50:52.194101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COMPTON, C. J., and NOBLE, J., concur.", "CARMODY and MOISE, JJ., not participating." ], "parties": [ "Barbara J. HORROCKS, Administratrix of the Estate of Hazel Vredeveld, Deceased, Jack P. Clark, Lonnie Mead and Dora Mead, his wife, Plaintiffs-Appellants, v. Robert Edison ROUNDS, Defendant-Appellee." ], "opinions": [ { "text": "PER CURIAM.\nUpon consideration of Motion for Rehearing, the original opinion heretofore filed is withdrawn and the following substituted therefor.\nCHAVEZ, Justice.\nThis is an action to recover for personal injuries and property damage sustained in an automobile collision.\nThe complaint alleged negligence, and appellee answered denying negligence and setting up the affirmative defenses of contributory negligence and assumption of risk. The case was tried to a jury. After the close of the evidence, when both sides had rested, appellee moved for and was granted the right, over objection, to amend his pleading so as to allege the additional affirmative defense of unavoidable accident. The jury rendered a verdict for appellee; motion for new trial was overruled; judgment was entered dismissing appellants\u2019 causes of action with prejudice. From said judgment, appeal was taken.\nThe accident in question occurred on September 5, 1958, at about 3:30 P.M. approximately two miles west of Clines Corners, on the west-bound side of U. S. 66, a four-lane divided highway, when appellee\u2019s car crashed into the rear of appellants\u2019 1957 Ford which was parked partly on and partly off the north shoulder of the highway some 600 feet west of the crest of a hill.\nAppellants had stopped at the scene of an earlier accident consisting of a large trailer and truck which had overturned and was lying entirely on the 63-foot bar ditch or neutral ground dividing the two eastbound lanes from the two west-bound lanes. The day was cold, windy and overcast, with intermittent rain and drizzle. Visibility was good, however, and there is testimony that one could see from one to one and one-half miles from the crest of the hill westward. The road was extremely slick when it was wet.\nAppellee testified that he had been driving 50 m. p. h. when he came over the crest of the hill. He saw the overturned trailer which appeared to be a Greyhound bus from a distance, saw a burning flare in the middle of the road, and then finally saw the parked car of appellants. There was no other traffic on the west-bound lanes, which were a total of 36 feet wide. He attempted to slow down, braking successfully down to 30 m. p. h., swerved to pass the parked car as he was in the right lane, skidded and crashed. He was aware of the fact that the highway was slick when wet having seen the warning sign at Clines Corners, and having previously slowed down to 50 m. p. h. due to this warning. There is testimony that the road in this area was abnormally slick; that there had been trouble with it; and the investigating officer\u2019s opinion was that the only way one could determine the actual character of the surface was by braking abruptly or swerving unless one noted the warning signs.\nAppellants rely on five points for reversal :\n- I. The trial court erred in instructing the jury, over appellants\u2019 objections, upon the claim or defense of unavoidable accident, as a j\u00fary question is not fairly raised in the evidence and silcli instrtidtiori is contrary to the' law and the evid'ehce.\n... II. The trial court^ erred in charging the jury upon the effect of Section 64-18-49, N.M.S.A., 1953 Comp., that a violation thereof would constitute negligence per se on the part of the appellants, since the facts of the case conclusively show that the statute is not applicable.\nIII. The trial court erred in charging the jury on the doctrine of sudden emergency since there was no evidence to support consideration of such doctrine and such charge was contrary to the law and the evidence.\nIV. The trial court erred in charging the jury on the doctrine of imputed negligence of a driver to passengers on the theory of joint adventure, for the reason that same is contrary to the law and the evidence.\nV. The trial court erred in charging the jury on the doctrine of assumed risk by the appellants, since application of said doctrine and consideration thereby by the jury was contrary to the law and the evidence.\nThe cause is now before us on motion for rehearing, which has been duly considered and is denied. We remain convinced of the correctness of our conclusion that the case must be retried because of errors committed by the trial court; furthermore, we adhere to our view of the law as set forth in our original opinion, now withdrawn. In. it, we considered only the second point raised by appellants since, under the facts! as originally presented and arguq^xto uiSj.dt-was determinative of the case. We held that, where it is impractical for a car to park entirely off the highway, it is not a violation of the provisions of \u00a7 64-18-49, N.M.S.A., 1953 Comp., for it to be parked partially or entirely on the highway, regardless of the reason for stopping, so long as the other mandatory provisions of the statute are met; i. e., that an unobstructed width of highway opposite the standing vehicle is left for the free passage of other vehicles and a clear view of such stopped vehicle is available for a distance of 200 feet in each direction. McGovern v. Greyhound Corporation, 53 Wash.2d 773, 337 P.2d 290. Indeed, in the case of a divided highway such as Highway 66, probably the only clear view required is the one ahead. The presence or absence of a compelling reason for stopping may well be pertinent insofar as the issue of contributory negligence is concerned, but it has no bearing on the issue of violation of the statute. We therefore rejected appellee\u2019s construction of the statute.\nAppellee, for the first time on rehearing, points to certain testimony which may be interpreted to show that it was practical for appellants to have parked entirely off the highway. Thus, if we consider these new facts raised by appellee, it would have been possible for the trial court to have properly instructed upon the statute, and its violation would have been negligence per se. Zamora v. J. Korber & Co., 59 N.M. 33, 278 P.2d 569. We note in passing that the actual instruction given by the court was erroneous because it did not inform the jury that the violation, if any, must also be found to be the proximate cause of the accident. Martin v. Gomez, 69 N.M. 1, 363 P.2d 365; Turner v. McGee, 68 N.M. 191, 360 P.2d 383; Isaac v. Seguritan, 66 N.M. 410, 349 P.2d 126; Hartford Fire Insurance Company v. Horne, 65 N.M. 440, 338 P.2d 1067; and Williams v. Haas, 52 N.M. 9, 189 P.2d 632. Appellants did not point out this specific vice to the trial court in their objection to the instruction, and thus it was insufficient to preserve the error for review. Sturgeon v. Clark, 69 N.M. 132, 364 P.2d 757; and Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362, and cases cited therein.\nAs originally presented to this court, the facts indicated that it was impractical\u2014 even impossible \u2014 to have parked entirely off the highway; therefore, it appeared that the learned trial court committed error by charging upon issues which, although pleaded, were not raised by the evidence. Reed v. Styron, 69 N.M. 262, 365 P.2d 912; Pitner v. Loya, 67 N.M. 1, 350 P.2d 230; and Thompson v. Anderman, 59 N.M. 400, 418, 285 P.2d 507.\nPursuant to Supreme Court Rule 15(6), we did not search the record but accepted the uncontradicted assertions, of fact as set forth .by appellants\u2019 brief that -the shoulder of the road at or near the place where appellants\u2019 car was parked was too narrow to permit off-highway parking. Appellants\u2019 presentation of the facts in this light was prompted by their acquiescing in appellee\u2019s theory of the case that the sole reason the car was parked partially on the highway was the physical impossibility of parking it otherwise. Only the testimony given by appellee\u2019s witnesses was cited; the testimony of appellants\u2019 witnesses that the car was not parked on the highway was ignored. This appellants did under the belief that they were complying with the rule requiring that only evidence favorable to the verdict and to the giving of the instruction be considered. Minor v. Homestake-Sapin Partners Mine, 69 N.M. 72, 364 P.2d 134; and Morrison v. Rodey, 65 N.M. 474, 340 P.2d 409. Neither side apparently realized, nor did they argue, that this omitted testimony could logically be interpreted to indicate that the shoulder was sufficiently wide to permit off-highway parking and that, if appellants were parked partially on the highway, the reason for their doing so could have been other than the physical impossibility of parking off the highway. As we interpret the statute, a driver must always park off the highway when practical to do so; the other requirements of clear view and sufficient passing space are not pertinent unless and until it is shown that it is impractical to park off the highway at the particular place in question.\nWe therefore turn our attention to appellants\u2019 point I and examine the trial court\u2019s charge to the jury on unavoidable accident and the objection thereto by appellants. The trial court, in instruction No. 6, informed the jury that the appellee relied upon three defenses, the third being unavoidable accident. He then defined unavoidable accident as follows:\n\u201c9. In law we recognize what is termed an unavoidable or inevitable accident. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence. Even if such an accident could have been avoided by the exercise of exceptional foresight, skill or caution, still, no one may be held liable for injuries resulting from it.\u201d\nAppellants\u2019 objection reads as follows:\n\u201cCome now the plaintiffs and respectfully except and object to the following Instructions of the Court, and for the grounds more specifically hereinafter stated:\n\u201cInstruction Number 6, as to point 3 thereof, the defendant\u2019s reliance upon the defense of unavoidable accident, upon the ground that the same was not pleaded by the defendants; evidence tending to establish such a defense was offered and duly objected to, and the plaintiffs surprised thereby; and for the further reason that the evidence does not support a jury consideration on the question of unavoidable accident.\n******\n\u201cThe plaintiffs except to the Court\u2019s Instruction Number 9, more particularly setting out the nature of the defense of unavoidable or inevitable accident, for the reasons hereinbefore stated, that the defense of unavoidable accident was not a proper consideration for the jury.\u201d\nUnder the view we take of the facts adduced in this case, we consider that' the giving of an instruction on unavoidable accident was prejudicial error as being unsupported by the evidence. We need not, therefore, consider the first portion of appellants\u2019 objection to the giving of this instruction on the grounds of surprise. Nor are we in a position to review the form of the instruction, since no specific objection was made to alert the mind of the trial court to the specific defects contained therein. Sturgeon v. Clark, supra; and Zamora v. Smalley, supra.\nWe do comment, however, that the learned trial judge failed to caution the jury that the burden of proof as to the affirmative defense of unavoidable accident was upon the appellee. In addition, the instruction was defective in that it was not:\n\u201c * * * followed by its application on assumed state of facts supported by substantial evidence from which, if believed, the jury would have been authorized to find that the * * * [collision] was caused by an unavoidable accident. * * * \u201d Stambaugh v. Hayes, 44 N.M. 443, 447, 103 P.2d 640, 643.\nWe may even assume that the trial court, in conformity with the general policy of allowing liberal amendments, properly allowed appellee to amend his answer to set forth the affirmative defense of unavoidable accident. In such event, we have repeatedly held that a party is entitled to an instruction on the theory of his case upon which there is evidence. Martin v. Gomez, supra; Zamora v. Smalley, supra; Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028, and cases cited therein.\nAppellee contends that we cannot hold that it is error to instruct on the issue of unavoidable accident unless we can find him guilty of negligence as a matter of law. This would appear to be true absent any issue of contributory negligence. Jontz v. Alderete, 64 N.M. 163, 326 P.2d 95, concurring opinion of Justice McGhee. In the case at bar, however, even were we to find that appellee was negligent as a matter of law, there is still the issue of contributory negligence. We have held that this is usually an issue- for the jury and we are not prepared to say that on this issue the minds of reasonable men could not differ; although we have indicated that, on the other hand, the mere parking of the automobile on the highway, even in violation of the.statute and being negligence per se, is not necessarily a contributing cause of the accident as a matter of law. Brown v. Hayes, 69 N.M. 24, 363 P.2d 632; Gutierrez v. Valley Irrigation & Livestock Co., 68 N.M. 6, 357 P.2d 664; Maryland Casualty Company v. Jolly, 67 N.M. 101, 352 P.2d 1013; Sandoval v. Brown, 66 N.M. 235, 346 P.2d 551; and Steadman v. Shackelton, 52 Wash.2d 22, 322 P.2d 833, 837.\nThe fact that, other cars were able to pass appellants\u2019 parked car, including two lgxge trucks almost side by side, under the identical, circumstances facing appellee, if believed by the jury, would certainly tend to negate any possibility of contributory negligence. Likewise, the jury on retrial would not be bound, as we are, to view the facts in a light most favorable to appellee. They would be at liberty to resolve the conflicts in the testimony regarding where the car was.'parked, on or. off the highway, and the actual distance from the crest, of the hill 'to the point of .impact in favor of appellants. Their resolution of these facts would\" certainly -bear on whether appellants\u2019 actions were-a contributing proximate cause of the accident.\nThe propriety of giving an instruction on unavoidable accident is tested by examining the evidence to determine whether a jury could conclude that the accident occurred without the negligence of anyone being the proximate cause. Baros v. Kazmierczwk, 68 N.M. 421, 362 P.2d 798; Zamora v. Smalley, supra; and Lucero v. Torres, supra. We must' again caution, as we did in both -the Lucero and Baros cases, that it is not every motor vehicle accident case that warrants the giving of an unavoidable accident instruction. There should be a genuine basis for the giving of the instruction such as some reasonably unexpected surprise or road condition, unpreventable mechancial failure, sudden appearance and reasonably unanticipated presence of a pedestrian or other object in the road; and such must be coupled with circumstances which present a fair issue of whether the failure 'of the driver to anticipate or sooner, guard against this .danger, or to avoid it, is consistent- with a conclusion of the exercise of his due care. In such cases the:.trial courts are inclined to grant the instruction and their action in so doing is generally ap-proved by the appellate courts. Baros v. Kazmierczwk, supra; and Lucero v. Torres, supra.\nThe only evidence in the case at bar, which might possibly have supported the giving of this instruction, is that the road was extremely slippery, and the testimony given by Officer O\u2019Connor as to his opinion concerning the cause of the accident, as follows: . .\n\u201cQ Now based on your experience as a police officer and as an individual who has investigated many, many accidents, and based on your investigation o'f this present accident and what you observed from the conversations which were related to you by the parties, have, you an opinion as to the cause or the reason for this accident? \u25a0\n******\n\u201cA Yes, I have an opinion.\n\u201cQ What is that opinion?\n******\n\u201cA On this particular highway, ahead of the hill to the East, of the accident, the first little hill, there is a rise. You come up this rise all the way from Clines Corners to the Wagon Wheel Cafe which is seven miles. This highway, when it rains, it\u2019s hard for you to understand, I don\u2019t believe a person can run and try'to'stop and stand on his feet. As you come up this hill, right at the top of the hill. You come tap the top of the hill, anyone seeing a \u2014 normally slows up and the accident, if the person applied his brakes or slowed up, his \u25a0vehicle would skid. The fact of this slipperyness and the surprise of it, because you can\u2019t see the accident from-the top of the hill. The fact that it was-real slippery and the element of surprise, to my conclusion is what caused the accident between these two vehicles.\n******\n\u201cQ Is there any additional factors other than the one which you have just told us which would bear in your consideration ?\n******\n\u201cA The fact that the vehicle was there would have caused the accident\u2014 had it not been there, I don\u2019t know whether \u2014 it possibly might have went in the ditch or it' might have skidded on down the road.\n\u201cQ You say \u2018a vehicle.\u2019 What vehicle ?\n\u201cA Since it was Mr. Clark\u2019s vehicle, I\u2019ll say Mr. Clark\u2019s vehicle.\u201d (Appellants\u2019 vehicle).\nHowever, when queried what Mr. Rounds, the appellee, had told him at the time of the \u00e1ccident, he read from his report as follows:\n\u201cThe driver stated he saw a flare up the road and a parked vehicle. The driver attempted to pass the vehicle and was unable to do so. His front wheels slipped on t.he slick pavement.\u201d\nOn cross-examination we-find the following:\n\u25a0 \u201cQ You were asked on direct exam-' ination if you had a conclusion as to whether there was any cause of this accident?\n* * * * *\n\u201cQ All right opinion. In which you stated that if I recall, interrupt me if I\u2019m wrong, that the Rounds\u2019 automobile was coming up over the reverse slope of this ridge and came up over there, saw the parked automobile and attempted to pass and was unable to do so, is that substantially what your conclusion was or opinion was ?\n\u201cA I believe it was, more or less.\u201d\nActually, this is substantially different from his first opinion. O\u2019Connor did not measure to see how far forward the parked car was moved by the impact, although the brake was set. O\u2019Conner did not see appellee\u2019s car at the top of the hill but only at the moment of impact. There evidently were no measurements taken of any skid marks, and he had no actual knowledge of the distance from the crest of the hill to the point of impact. O\u2019Connor\u2019s statement that this distance was about 600 feet is a mere estimate. Furthermore, he was asked the following questions:\n\u201cQ How much of this automobile do you recall as being extended into this portion of the highway?\n\u201cA It would be the width of the vehicle subtracted from 36 would give it to you. I didn\u2019t measure it.\n\u201cQ All right. Was there sir \u2014 was this portion of the road at the time that the Clark\u2019s, automobile parked open to traffic ?\n\u201cA Yes, it certainly was.\n\u201cQ And between the time that the Clark automobile parked and the time that the Rounds\u2019 automobile struck it, do you recall any traffic having passed?\n\u201cA There was. How much I don\u2019t recall.\n\u201cQ But you do recall some traffic going by?\n\u201cA Yes.\n\u201cQ Did they have any difficulty in passing the parked vehicle?\n\u201cA No, sir. Not that I noticed.\u201d\nWe are not here considering the testimony of appellants\u2019 witnesses that two trucks passed them side-by-side. Nor do we consider any of the testimony that Mr. Rounds, at the time of the accident, admitted that it was his fault, since there is a conflict thereon. We do note, however, that even after the second accident it was uncontradicted that traffic was able to pass, although the right lane was now almost entirely blocked. Of course, by this time, there were highway department men directing traffic, but it is not clear from the testimony how far away they were from the scene of the accident.\nWe turn, instead, to the testimony of appellee and that of his wife. On direct examination, appellee testified:\n\u201cQ * * * as you approached the scene of the accident, do you recall a hill?\n\u201cA Yes, sir.\n\u201cQ At that time how fast were you going Mr. \u2014 (interrupted)\n\u201cA Fifty miles an hour.\n\u201cQ * * * And after you came up over this hill, what did you see?\n\u201cA I saw what appeared to he a Greyhound Bus in the ditch.\n\u201cQ And where was it?\n\u201cA It was in the \u2014 off in the ravine between the two highways.\n******\n\u201cQ * * * ancj was the first thing you saw as you dropped off over the crest of the hill ?\n\u201cA Right.\n\u201cQ What was the position of your vehicle at that time?\n\u201cA My position was in the right-hand lane.\n******\n\u201cQ * * * an