{ "id": 2805643, "name": "Jerry PACK and Motors Insurance Corporation, Plaintiffs-Appellants, v. Lawson READ, Defendant-Appellee", "name_abbreviation": "Pack v. Read", "decision_date": "1966-10-24", "docket_number": "No. 8110", "first_page": "76", "last_page": "79", "citations": [ { "type": "official", "cite": "77 N.M. 76" }, { "type": "parallel", "cite": "419 P.2d 453" } ], "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": "74 N.M. 455", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804795 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0455-01" ] }, { "cite": "71 N.M. 335", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5347234 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0335-01" ] }, { "cite": "74 N.M. 725", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2801365 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/74/0725-01" ] }, { "cite": "65 N.M. 440", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2847370 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/65/0440-01" ] }, { "cite": "68 N.M. 191", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2718681 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/68/0191-01" ] }, { "cite": "64 N.M. 182", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5345665 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/nm/64/0182-01" ] }, { "cite": "61 N.M. 77", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5318637 ], "weight": 3, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/61/0077-01" ] }, { "cite": "374 P.2d 141", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2851810, 2850647 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0390-01", "/nm/70/0389-01" ] }, { "cite": "70 N.M. 390", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2851810 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0390-01" ] }, { "cite": "71 N.M. 310", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5347506 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0310-01" ] } ], "analysis": { "cardinality": 462, "char_count": 6691, "ocr_confidence": 0.65, "pagerank": { "raw": 1.5417820857162472e-07, "percentile": 0.6730243732356597 }, "sha256": "e9a0ad46699834cd02b31c3b6b08e9295cc562352aaf637c4f29f852cb3be214", "simhash": "1:90da16c0752e515e", "word_count": 1077 }, "last_updated": "2023-07-14T20:38:38.028708+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CHAVEZ and COMPTON, JJ., concur." ], "parties": [ "Jerry PACK and Motors Insurance Corporation, Plaintiffs-Appellants, v. Lawson READ, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\n- WALDO SPIESS, Judge, Court of Appeals.\nPlaintiffs, Jerry Pack and Motors Insurance Corporation, brought this action to recover for damages to Pack\u2019s automobile alleged to have resulted from the negligence of the defendant, Lawson Read. The issues were tried by the court without a jury. After requested findings and conclusions by both plaintiffs and defendant the trial court found the issues for defendant,. and entered judgment accordingly, from which this appeal is prosecuted.\n\u25a0 The trial 'court found in 'substance that ori May 21, 1965, defendant'was driving \u00e1 pick-up truck in a. southerly direction on U. S. highway 70 and towing a- farm machine known \u00e1s a \u201cland leveler\u201d behind' the pick-up truck. At the time plaintiff Pack\u2019s automobile;was parked approximately five feet west of and parallel to the southbound lane of the. highway., Immediately before the pi.ck-up truck and the farm machine being towed reached the area where the Pack automobile was parked a mechanical failure consisting of the breaking of a bolt occurred which permitted the farm machine to swerve from side to side causing a collision between the farm machine and the Pack automobile.\nThe trial court declined to firid n\u00e9gligence on the part, of the-defendant but-on the contrary, found that the collision was not caused by negligence and concluded that it was unavoidable.\nPlaintiffs rely upon three points for reversal. The first point they state as follows: \u201cThe doctrine of res ipsa -loquitur was applicable to the case as made out by appellants and the court erred in refusing to so find * * Plaintiffs\u2019 argument under their first point as we understand it is that the evidence adduced by them at the trial aided by the doctrine of res ipsa loquitur established a prima facie case in their favor. To overcome the case so established and avoid an adverse judgment defendant had the burden of meeting or balancing the inference of negligence arising under the doctrine. In this he failed in that his explanation of the cause of the collision neither met nor balanced the inference.\nA difficulty with plaintiffs\u2019 argument lies in the application of the doctrine of res ipsa loquitur.. They would treat it as compelling an inference of negligence, whereas, we have uniformly held that the doctrine permits but does not require the fact finder to draw an inference of negligence. Renfro v. J. D. Coggins Company, 71 N.M. 310, 378 P.2d 130 (1963); McFall v. Shelley, 70 N.M. 390, 374 P.2d 141 (1962); Tuso v. Markey, 61 N.M. 77, 294 P.2d 1102 (1956).\nIn Tuso v. Markey, supra, we approvingly quoted Dean Prosser\u2019s statement of the doctrine in the following language:\n\u201c 'In the ordinary case res ipsa loquitur merely permits the jury'to-choose the inference of the defendant\u2019s negligence ip preference to other permissible inferenees. It-avoids a nonsuit and gets the plaintiff to the jury; but a verdict for the defendant' will be affirmed even'though he offers no evidence.\u2019 \u201d\n\"A further difficulty with the argument advanced by plaintiffs 'is that defendant\u2019s explanation 'of the' cause of the collision satisfied the mind of the court that the accident was not the result of negligence on his part. The court, therefore, rejected any inference of culpability which might have arisen from the operation of the doctrine.\nPlaintiffs next contend that the evidence elicited at the trial in support of their charge of negligence proved that defendant\u2019s acts amounted to negligence on his part which proximately caused the collision and resulting damage. Error is asserted in the refusal- pf the trial court to make applicable requested findings and in making contrary findings.\nIn argument , plaintiffs contend that defendant\u2019s negligence resulted from his violation of certain traffic regulations, namely, the transporting of an overwidth load upon the highway without- having procured an authorizing permit and in failing to place warning -flags upon the implement being towed. While the evidence may have established conclusively that defendant did violate the statutory regulations mentioned and consequently was guilty of negligence as a matter, of law, plain.tiffs stijl had the burden of establishing'a causal connection between such negligence and the collision. Williams v. Neff, 64 N.M. 182, 326 P.2d 1073 (1958). It is. fundamental that negT ligence relied .uppn .must be the proximate cause of the accident- . Turner v. McGee, 68 N.M. 191, 360 P.2d 383 (1961). The rule is no different though the negligence asserted results from the violation .of a statutory requirement. Hartford Fire Insurance Co. v. Horne, 65 N.M. 440, 338 P.2d 1067 (1959).\nFrom our examination of the record we find no causal connection between the claimed acts of negligence and the collision. The trial court, likewise, found no such causal connection as is indicated by its express finding that neither the width of the farm implement, the absence of flags, or the failure to have a perniit, singly or collectively was or were the proximate cause of the collision.\nPlaintiffs likewise argue that the evidence conclusively shows that defendant was exceeding the speed limit and that such violation was a proximate cause of the accident and resulting damage. The evidence is conflicting as to the speed at which defendant was operating his pick-up truck at the time of the accident. The trial court resolved the conflict and found that defendant was driving within the lawful speed requirements applicable at the time and, place. The.finding is based upon substantial evidence and is, therefore, binding upon this court. Dotson v. Farmers, Inc., 74 N.M. 725, 398 P.2d 54 (1965); Utter v. Marsh Sales Co., 71 N.M. 335, 378 P.2d 374 (1963).\nPlaintiffs finally \"assert error based .upon the-trial court\u2019s remarks- \u00e1t the-.conclusion of the testimony-which they claim indicate that the decision-was based partly \u2022or wholly upon erroneous conclusions and speculation unsupported by evidence. This contention is clearly without merit for the reason that an oral opinion is not a \u201cdecision\u201d as contemplated by Rule 52(B) (a) (1) (2) (3) (4), Sec. 21-1-1 (52) (B) (a) (1) (2) (3) (4), N.M.S.A., 1953, and error cannot be predicated thereon. Mirabal v. Robert E. McKee, General Contractor, 74 N.M. 455, 457, 394 P.2d 851 (1964).\nWe hold the points argued by plaintiffs to be without merit from which it follows that the judgment appealed from should be affirmed.\nIt is so ordered.\nCHAVEZ and COMPTON, JJ., concur.", "type": "majority", "author": "- WALDO SPIESS, Judge, Court of Appeals." } ], "attorneys": [ "Gore & Nieves, Clovis, for appellants." ], "corrections": "", "head_matter": "419 P.2d 453\nJerry PACK and Motors Insurance Corporation, Plaintiffs-Appellants, v. Lawson READ, Defendant-Appellee.\nNo. 8110.\nSupreme Court of New Mexico.\nOct. 24, 1966.\nGore & Nieves, Clovis, for appellants." }, "file_name": "0076-01", "first_page_order": 108, "last_page_order": 111 }