{
  "id": 5335993,
  "name": "Nathana GOODMAN, individually and as next friend of Sheila Taylor, a minor, and Sheila Taylor, individually, Plaintiffs-Appellants, v. C. V. VENABLE and Susan Ann Venable, Defendants-Appellees",
  "name_abbreviation": "Goodman ex rel. Taylor v. Venable",
  "decision_date": "1971-03-26",
  "docket_number": "No. 542",
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  "last_updated": "2023-07-14T17:16:32.756560+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "SPIESS, C. J., and WOOD, J., concur."
    ],
    "parties": [
      "Nathana GOODMAN, individually and as next friend of Sheila Taylor, a minor, and Sheila Taylor, individually, Plaintiffs-Appellants, v. C. V. VENABLE and Susan Ann Venable, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nHENDLEY, Judge.\nPlaintiffs appeal an adverse jury verdict on two grounds which relate to (1) the court\u2019s refusal of a tendered instruction on presumption of knowledge of a defective condition, and (2) th\u00e9 giving-of an instruction on unavoidable accident.\nWe affirm.\nDefendant, Susan Venable, drove her father\u2019s car to school. The brakes were functioning normally. Susan and a friend left school and drove to a restaurant for lunch. Susan noticed the brakes had to be depressed a little further .than normal to stop the vehicle, although the stopping distance was still normal. At the end of the school day Susan returned to her car to drive home. Before leaving the parking area she had one occasion to try the brakes. She testified: \u201cThey weren\u2019t working normally. They weren\u2019t bad but they would stop.\u201d Susan pulled out of the school parking lot and onto the street .'at a speed of 10 to 15 miles per hour. Susan observed plaintiff\u2019s, Sheila Taylor\u2019s, car stopping and when Susan was' about three car lengths from the rear of Sheila\u2019s car, she applied her brake. The brake pedal went to the floor without 'any- apparent effect on stopping the car. Susan\u2019s car then rear-ended Sheila\u2019s car.' 'Susan stated she had no advance warning \u25a0 that the brakes would completely fail.\nMr. Reeves, an auto mechanic since 1924 and with considerable experience in the re\u25a0pair of hydraulic brake systeins, testified that one of the brake lines had ruptured and that \u201cyou 'lose all of your brakes with a rupture like that.\u201d An inference from Mr. Reeves\u2019 testimony is that the accident would not have caused the rupture. Mr. Reeves stated that in all of his experience this was the second time he had knowledge of a ruptured brake line.\nPresumption of Knozvledge of a Defective Condition.\nPlaintiffs contend the trial court erred in refusing to give their Requested Instruction No. 2 which states:\n\u201cIt is presumed that an owner of an automobile knows and knew, prior to the time and occurrence in question, of the defective condition of the automobile brakes of the automobile owned by him, and the burden of proof is on said owner to prove any lack of knowledge.\u201d Plaintiffs assert that \u00a7 64-20-41, N.M.\nS.A.1953 (Repl. Vol. 9, pt. 2, Supp.1969) spells out the law in New Mexico with regard to the maintenance of brakes and stopping distances. Plaintiffs cite Ferran v. Jacquez, 68 N.M. 367, 362 P.2d 519 (1961) for the proposition that the owner is presumed to have knowledge of a defective condition of his brakes.\nPlaintiffs\u2019 statement of Ferran is incomplete. Ferran goes on to say that once the plaintiff has shown the statutory violation, that the violation is sufficient evidence to defeat a motion for a directed verdict and defendant then has the burden of coming forward and showing lack of knowledge of the defective condition as a reasonable man which would relieve him ,of the responsibility placed upon him by the statute.\nThis is exactly what the trial court did when it gave U.J.I. 11.2. The instruction not only explained the statutes involved (two parts of \u00a7 64-20-41, supra) but also sets'forth how they were to be applied and the consequences thereof. Those portions were as follows:\n\u201cIf you find from the evidence that the Defendant conducted herself in violation of either of these statutes, you are instructed that such conduct constituted negligence as a matter of law, unless you further find that such violation was excusable or justifiable.\n\u201cTo legally justify or excuse a violation the violator must sustain the burden of showing that he did that which might reasonably be expected of a person of ordinary prudence acting under similar circumstances who desires to comply with the law.\u201d\nThe requested instruction was incomplete and therefore an incorrect statement of the law and insofar as it was correct it was repetitious. It is not error to refuse instructions which are incomplete, erroneous or repetitious. Lopez v. Maes, 81 N.M. 693, 472 P.2d 658 (Ct.App.1970), cert. denied 81 N.M. 721, 472 P.2d 984 (1970); Garcia v. Barber\u2019s Supermarkets, Inc., 81 N.M. 92, 463 P.2d 516 (Ct.App.1970).\nUnavoidable Accident.\nPlaintiffs contend that the giving of the instruction on unavoidable accident (U.J.I. 13.9) was error. Plaintiffs rely on Horrocks v. Rounds, 70 N.M. 73, 370 P.2d 799 (1962) for the proposition that not every vehicle accident case warrants giving an instruction on unavoidable accident. There should be a genuine basis for the instruction, such as \u201cunpreventable mechanical failure\u201d and \u201csuch must be coupled with circumstances which present a fair issue of whether this failure of the driver to anticipate or sooner guard against the danger or to avoid it, is consistent with a conclusion of the exercise of his due care.\u201d\nThe evidence is such that we could not reasonably conclude, as a matter of law, that there was not an \u201cunpreventable mechanical failure\u201d which the driver could not reasonably anticipate or guard against or avoid it consistent with a conclusion of due care.\nDefendants having presented evidence on unavoidable accident were entitled to an instruction supporting their theory of the case. Boyd v. Cleveland, 81 N.M. 732, 472 P.2d 995 (Ct.App.1970).\nAffirmed.\n\u2022 It is so ordered.\nSPIESS, C. J., and WOOD, J., concur.",
        "type": "majority",
        "author": "HENDLEY, Judge."
      }
    ],
    "attorneys": [
      "David L. Norvell, Clovis, for plaintiffs-appellants.",
      "Stuart D. Shanor, Hinkle, Bondurant, Cox & Eaton, Roswell, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "483 P.2d 505\nNathana GOODMAN, individually and as next friend of Sheila Taylor, a minor, and Sheila Taylor, individually, Plaintiffs-Appellants, v. C. V. VENABLE and Susan Ann Venable, Defendants-Appellees.\nNo. 542.\nCourt of Appeals of New Mexico.\nMarch 26, 1971.\nDavid L. Norvell, Clovis, for plaintiffs-appellants.\nStuart D. Shanor, Hinkle, Bondurant, Cox & Eaton, Roswell, for defendants-appellees."
  },
  "file_name": "0450-01",
  "first_page_order": 506,
  "last_page_order": 508
}