{ "id": 5361666, "name": "Ida Mary TENORIO, Administratrix of the Estate of Adan A. Tenorio, Deceased, Plaintiff-Appellee, v. Elmer Roy NOLEN, Defendant-Appellant", "name_abbreviation": "Tenorio v. Nolen", "decision_date": "1969-08-01", "docket_number": "No. 297", "first_page": "529", "last_page": "531", "citations": [ { "type": "official", "cite": "80 N.M. 529" }, { "type": "parallel", "cite": "458 P.2d 604" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "66 N.M. 458", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848200 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/66/0458-01" ] }, { "cite": "75 N.M. 70", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5375335 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/75/0070-01" ] }, { "cite": "13 S.W.2d 452", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10294242 ], "opinion_index": 0, "case_paths": [ "/sw2d/13/0452-01" ] }, { "cite": "231 S.W. 300", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1921, "opinion_index": 0 }, { "cite": "208 Mo.App. 149", "category": "reporters:state", "reporter": "Mo. App.", "case_ids": [ 1791002 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/mo-app/208/0149-01" ] }, { "cite": "389 P.2d 692", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 569707, 570277 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ariz/95/0285-01", "/ariz/95/0286-01" ] }, { "cite": "95 Ariz. 286", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 570277 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ariz/95/0286-01" ] }, { "cite": "67 N.M. 189", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2716293 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0189-01" ] }, { "cite": "78 N.M. 155", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326879 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0155-01" ] } ], "analysis": { "cardinality": 427, "char_count": 6503, "ocr_confidence": 0.676, "pagerank": { "raw": 1.2907859195671076e-07, "percentile": 0.6197342007198103 }, "sha256": "30bce541dd800a60afc2eb48b5f56769d9a9fe54b7080b6b41ab646031a19b99", "simhash": "1:c172a04fa79cdc67", "word_count": 1061 }, "last_updated": "2023-07-14T15:41:23.226975+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and WOOD, J\u201e concur." ], "parties": [ "Ida Mary TENORIO, Administratrix of the Estate of Adan A. Tenorio, Deceased, Plaintiff-Appellee, v. Elmer Roy NOLEN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nDefendant relies on two points for reversal (1) his motion for continuance should have been sustained, and (2) an instruction on warning by a motorist to a pedestrian was misleading. The claims are not well taken.\nDuring depositions Frankie Barela was named as a possible witness. There were two Frankie Barelas. Defendant\u2019s counsel talked to one of them and obtained a statement concerning the accident in question. Plaintff\u2019s counsel talked to the other, who knew nothing about the accident. Subsequently, upon inquiry, plaintiff\u2019s counsel advised defendant\u2019s counsel that he would not call Frankie Barela as a witness. In preparing for trial, plaintiff\u2019s counsel learned of the Frankie Barela who witnessed the accident. Pursuant to his promise that defendant\u2019s counsel would have an opportunity to depose witnesses prior to trial, plaintiff\u2019s counsel promptly arranged for the deposition of the Barela who witnessed the accident. This deposition was taken the afternoon before trial.\nOn the morning of the trial, defendant orally moved for a continuance. He claimed that Barela\u2019s deposition testimony presented a version of the accident which differed from the version given in his prior statement. He also claimed that prior to Barela\u2019s deposition the \u201cindications\u201d were that no one would oppose defendant\u2019s version of the accident. Barela\u2019s version differed from defendant\u2019s version. Defendant\u2019s counsel claimed he was surprised by this variance and \u201c * * * that in view of this situation we should have the opportunity of making further investigation.\u201d The trial court denied the motion, stating:\n\u201cIt seems to me that since you knew the identity of this witness for months Mr. Ringer you would have deposed him much earlier and could have discovered this discrepancy and actually had a written statement from him. It seems to mean that you have not shown any great diligence in discovering this discrepancy earlier.\u201d\nMotion for Continuance.\nGranting or denying a motion for continuance rests in the discretion of the trial court and will not be interfered with except for abuse. State v. Nieto, 78 N.M. 155, 429 P.2d 353 (1967); Houston Fire and Casualty Insurance Co. v. Falls, 67 N.M. 189, 354 P.2d 127 (1960).\nDefendant was aware that Barela was a witness. He had taken Barela\u2019s statement some months prior to the time plaintiff discovered Barela was a witness. Apparently satisfied with the statement, defendant made no effort to depose Barela during this time. Defendant now claims that he should have been granted a continuance in order to seek testimony to rebut Barela\u2019s testimony. It may be true that defendant was surprised by Barela\u2019s deposition testimony. The fact remains that defendant could have learned what that testimony would be many months before he did so. If Barela\u2019s deposition had been taken, defendant would have had ample time in which to seek rebuttal testimony. The cases relied upon by defendant\u2014Hall v. Delvat, 95 Ariz. 286, 389 P.2d 692 (1964); Noah v. L. B. Price Mercantile Co., 208 Mo.App. 149, 231 S.W. 300 (1921); and Giles v. Tyson, 13 S.W.2d 452 (Tex.Civ.App.1929), are not applicable to the facts of this case. Section 21-8-9, N.M.S.A. 1953 does apply. This section provides that a continuance is not to be granted for any cause growing out of the fault of the party applying therefor. The trial court did not abuse its discretion in denying the continuance.\nJury Instructions.\nAs a part of the jury instructions the trial court gave UJI 9.9 as its instruction number 7. It reads:\n\"Pedestrians\u2014Crossing at other than Crosswalks\n\u201cAt the time of the occurrence in question there were certain statutes in force in the State of New Mexico which provided that:\n\u201cEvery pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.\n\u201cEvery driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary.\n\u201cIf you find from the evidence that either the plaintiff\u2014pedestrian, or the defendant\u2014driver or both violated the law and failed to perform the respective duties required of each by these statutes then you are instructed that such failure constituted negligence as a matter of law upon the part of such person.\u201d\nDefendant objected to this instruction unless the trial court would insert, after the third paragraph, the language \u201cwhen the party has an opportunity to do so.\u201d\nThe third paragraph of the instruction comes from \u00a7 64-18-36, N.M.S.A. 1953 (Repl. Vol. 9, pt. 2) and is in the language of the statute. Defendant contends that it would be unreasonable to construe this language as imposing \u201c * * * an absolute duty to warn the pedestrian, if the pedestrian needed warning. * * * \u201d The statute does impose the duty of \u201c * * * warning by sounding the horn if necessary. * * \u201d This, however, is not, as defendant contends, an absolute duty. Defendant could be excused from a violation of the statute. Hayes v. Hagemeier, 75 N.M. 70, 400 P.2d 945 (1963); Jackson v. Southwestern Public Service Co., 66 N.M. 458, 349 P.2d 1029 (1960). See the committee comment to UJI 11.1.\nDefendant\u2019s theory of the case was that he had no opportunity to sound his horn. There is evidence to support this theory. Defendant did not request an instruction on his theory of the case. Instead he tried to interject his theory into the court\u2019s instruction stating the statutory duty to sound the horn when necessary. Further, the words requested to be added, concern an excuse from violating the statute.\nThe addition of defendant\u2019s requested words would have been improper because the instruction then would not have correctly stated the duty imposed by statute. Further, the requested words were not sufficient as a theory of case instruction and were not sufficient as an instruction concerning excuse from violating a statute. See UJI 11.2.\nThe trial court did not err in refusing to add the words requested by defendant.\nThe judgment is affirmed.\nIt is so ordered.\nSPIESS, C. J., and WOOD, J\u201e concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "Leslie D. Ringer, Santa Fe, for appellant.", "David L. Norvell, Clovis, for appellee." ], "corrections": "", "head_matter": "458 P.2d 604\nIda Mary TENORIO, Administratrix of the Estate of Adan A. Tenorio, Deceased, Plaintiff-Appellee, v. Elmer Roy NOLEN, Defendant-Appellant.\nNo. 297.\nCourt of Appeals of New Mexico.\nAug. 1, 1969.\nRehearing Denied Aug. 25, 1969.\nLeslie D. Ringer, Santa Fe, for appellant.\nDavid L. Norvell, Clovis, for appellee." }, "file_name": "0529-01", "first_page_order": 585, "last_page_order": 587 }