{ "id": 5332879, "name": "Melcor TAFOYA and Sabina Tafoya, his wife, Plaintiffs-Appellants, v. Bobby WHITSON, Defendant-Appellee", "name_abbreviation": "Tafoya v. Whitson", "decision_date": "1971-06-18", "docket_number": "No. 544", "first_page": "23", "last_page": "28", "citations": [ { "type": "official", "cite": "83 N.M. 23" }, { "type": "parallel", "cite": "487 P.2d 1093" } ], "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": "82 N.M. 55", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325481 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/82/0055-01" ] }, { "cite": "82 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5328432 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/82/0120-01" ] }, { "cite": "80 N.M. 684", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5355905 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0684-01" ] }, { "cite": "81 N.M. 92", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365264 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0092-01" ] }, { "cite": "42 N.M. 325", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569808 ], "weight": 2, "year": 1938, "opinion_index": 0, "case_paths": [ "/nm/42/0325-01" ] }, { "cite": "70 N.M. 58", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2852168 ], "year": 1962, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nm/70/0058-01" ] }, { "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": "80 N.M. 196", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5356516 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/80/0196-01" ] }, { "cite": "81 N.M. 591", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365750 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0591-01" ] }, { "cite": "274 S.W.2d 240", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10183921, 1336395 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/sw2d/274/0240-01", "/mo/364/1230-01" ] }, { "cite": "364 Mo. 1230", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 1336395 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/mo/364/1230-01" ] }, { "cite": "78 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323899 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0556-01" ] }, { "cite": "82 N.M. 661", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335268 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0661-01" ] }, { "cite": "363 P.2d 365", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1961, "opinion_index": 0 }, { "cite": "69 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2791682 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0001-01" ] }, { "cite": "74 N.M. 135", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804322 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0135-01" ] }, { "cite": "81 N.M. 648", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360309 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0648-01" ] } ], "analysis": { "cardinality": 811, "char_count": 17769, "ocr_confidence": 0.673, "pagerank": { "raw": 2.565576571220107e-07, "percentile": 0.8157705333399746 }, "sha256": "81940df5566be812b919c32b07c0bdd38da0a30fa487bbfc465215e52c93adb4", "simhash": "1:d965cb00dc0d987e", "word_count": 2982 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and SUTIN, J., concur." ], "parties": [ "Melcor TAFOYA and Sabina Tafoya, his wife, Plaintiffs-Appellants, v. Bobby WHITSON, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nPlaintiffs sued to recover damages for personal injuries and property damages arising out of an automobile accident in which defendant drove his car into the rear of Sabina\u2019s car. At the close of both plaintiffs\u2019 case and defendant\u2019s case, plaintiffs moved for a directed verdict on liability. Both motions were denied. The jury then returned a verdict for defendant.\nPlaintiffs appeal asserting the trial court erred in (1) failing to direct a verdict on liability and (2) the giving of various instructions.\nWe affirm.\n1. DIRECTED VERDICT.\nIn passing on plaintiffs\u2019 motion for a directed verdict on liability we view the evidence together with all inferences that could reasonably be drawn therefrom in a light most favorable to defendant, disregarding all evidence to the contrary. Francis v. Johnson, 81 N.M. 648, 471 P.2d 682 (Ct.App.1970).\nThere were conflicting accounts of the accident, but when we view only testimony most favorable to the defendant the record is as follows: Defendant was driving through Gallup on his way to Farmington from Tucson. There was a substantial amount of snow on the ground and it was snowing hard. He was proceeding east on old Highway 66. Plaintiff, Sabina, pulled in front of defendant and he proceeded to follow her at a speed of 10 miles per hour. Defendant followed Sabina\u2019s car because she had a Gallup license number and defendant was having difficulty seeing the road because of the snow. Defendant traveled about 25 to 35 feet behind Sabina\u2019s car. Sabina\u2019s car traveled over into the westbound lanes of the divided highway and when she saw this she brought her car to a stop. Defendant saw no brake lights but upon realizing Sabina was stopping he pulled his car into low gear and applied his brake. He was unable to stop and skidded into Sabina\u2019s car at an approximate speed of five miles per hour. Defendant\u2019s car was \u25a0 not Equipped with chains or snow tires.\nFollowing the accident, defendant discovered that plaintiff Sabina had traveled into the left hand lane of the westbound lanes of travel. The accident occurred in that lane. ' '\nIn light of the foregoing, plaintiffs assert that defendant was negligent as a matter of law and there is no substantial evidence to support a finding of contributory negligence on the part of plaintiff. It is plaintiffs\u2019 position that defendant, as a matter of law, failed to keep his speed controlled as was necessary to avoid colliding with any person, vehicle on or entering the highway, contrary to \u00a7 64-18-1.1 (C) (1), N.M. S.A.1953 (1969 Pocket Supp.). Also that pursuant to \u00a7 64-18-l7(a), N.M.S.A.1953 (Repl.Vol.1960, pt. 2) defendant was negligent, as a matter of law, in following too closely in hazardous weather.\nThe mere fact that a statute is violated does not, in and of itself, make such violation the proximate cause of an accident. Terrel v. Lowdermilk, 74 N.M. 135, 391 P.2d 419 (1964). As stated in Martin v. Gomez, 69 N.M. 1, 363 P.2d 365 (1961), where the statute involved was driving on the left of the center line:\n\u201cGranting that the defendant violated this statutory mandate, nevertheless, the evidence in this case relative to a causal connection between the statutory violation and the injury is not such as would have justified the trial court in ruling as a matter of law that the violation was the proximate cause of the injury. Consequently, the trial court was correct in leaving the issue of causation to the jury-\n\u25a0 As Prosser on Torts points out at page 155, there are certain statutes a violation of which in and of itself is the proximate cause of an injury. But there are other statutes, such as the one involved in this case, a violation of which may or may not have any causal connection with an ensuing injury.\u201d\nThe issue of contributory negligence is usually an issue for the jury. Le Doux v. Peters, 82 N.M. 661, 486 P.2d 70 (Ct.App.), decided May 21, 1971. The question of negligence and contributory negligence can only be taken from the jury and decided as a matter of law when reasonable minds could not differ on the question. Based on the foregoing facts, we cannot say as a matter of law, that reasonable minds could not differ on the issue of defendant\u2019s negligence or plaintiff Sabina\u2019s contributory negligence. Lujan v. Reed, 78 N.M. 556, 434 P.2d 378 (1967).\nNeither are we impressed with the argument on appeal that plaintiff Sabina was required to stop because of an emergency situation. The record does not show an emergency. There was no oncoming traffic. She could best extricate herself by driving back to the proper side of the road.\nPlaintiffs cite Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240 (1955) for the proposition that acts of the driver of the lead automobile are as a matter of law, too remote to be causative in the legal sense when the lead automobile stops without warning signals and is then rear-ended by another automobile. Our reply is that Branstetter involved different facts, there being a multi-automobile collision. In addition, even in such situation Branstetter\u2019s \u201ctoo remote\u201d theory is not the law in New Mexico. Compare Kelly v. Montoya, 81 N.M. 591, 470 P.2d 563 (Ct.App.1970).\nThe trial court properly denied plaintiffs\u2019 hlotion for a directed verdict on liability and submitted the issue to the jury.\n2. INSTRUCTION ON SABINA\u2019S STATUTORY VIOLATIONS. \u2022\nPlaintiffs contend \u201c * * * that the court erred in giving instructions Nos. 13, 14 and 15 all relating to the alleged violation by the plaintiff [Sabina] of the statutes regulating the proper actions to be taken by one using the roadway. * * * \u201d It is plaintiff\u2019s position that if the statutes \u2022were violated then her actions did not constitute the proximate cause of this collision and that the court in giving these instructions implying that she was contributorily negligent as \u00e1 matter of law if she had violated these statutes was error.\nThe instructions were related to certain statutes in force and stated:\n13. \u201c \u2018Whenever any highway has been divided into two (2) roadways by leaving an intervening space or by a physical barrier or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the righthand roadway. * * * \u2019\n\u201cIf you find from the evidence that the plaintiff Sabina Tafoya conducted herself in violation of this statute you are instructed that such conduct constituted negligence as a matter of law.\u201d\n14. \u201c \u2018No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.\u2019\n\u201cIf you find from the evidence that the plaintiff Sabina Tafoya conducted herself in violation of this statute you are instructed that such conduct constituted negligence as a matter of law.\u201d\n15. \u201c \u2018(a) Any stop or turn signal when required herein shall be given either by means' of the hand and arm or by a signal lamp or lamps or mechanical signal device * * * 3\n\u201c \u2018All signals herein required given by hand and arm shall be given from the left side of the vehicle in the following manner and such signals shall indicate as follows: * * * \u2019\n\u201c \u20183. Stop or decrease speed. Hand and arm extended downward.\u2019\n\u201cIf you find from the evidence that the plaintiff Sabina Tafoya conducted herself in violation of this statute you are instructed that such conduct constituted negligence as a matter of law.\u201d\nPlaintiffs contend that instruction No. 13 was wrong in that the statute was enacted for the benefit of a particular class and that defendant is not within that class. The specific vice in the instruction should have been pointed out so as to leave no doubt that the court\u2019s mind was actually alerted. Castillo v. Juarez, 80 N.M. 196, 453 P.2d 217 (Ct.App.1969). Plaintiffs did not raise the question in the lower court. It cannot be first raised here on appeal.\nPlaintiffs next contend that instructions Nos. 14 and 15 were improper in that there is no substantial evidence in the record to show that Sabina did not give an appropriate signal within the meaning of the statute. We disagree.\nThere was testimony that defendant was about 25 or 35 feet behind Sabina\u2019s car; that he could see she had a Gallup license; that he was intently watching her car; that he did not see her tail light come on; and that he \u201c * * * had no difficulty in seeing her in front of him. * * * \u201d It follows then that since defendant was intently watching and did not see the brake lights go on, a reasonable inference follows that they did not go on. Compare Turner v. McGee, 68 N.M. 191, 360 P.2d 383 (1961).\nThe cases cited by plaintiffs are distinguishable on their facts. Here, based upon the undisputed testimony that the tail light did not go on, we cannot say as a matter of law that the jury could not conclude that such was the proximate cause of the accident.\n3. INSTRUCTIONS 13, 14 and 15 WERE BASED ON U.J.I. 11.1 INSTEAD' OF U.J.I. 11.2.\nA review of plaintiffs\u2019 objections to the-foregoing instructions and whether they should have been under U.J.I. 11.2 (Violation of Statute or Ordinance\u2014Excuse) instead of U.J.I. 11.1 (Violation of Statute or Ordinance) show they were never brought to the trial court's attention. Having not been brought to the trial court\u2019s, attention they cannot be first raised here on appeal. Castillo v. Juarez, supra. Accordingly, we do not discuss the merit of plaintiffs\u2019 contention.\n4. INSTRUCTIONS OF PROXIMATE CAUSE RESULTING FROM STATUTE OR ORDINANCE VIOLATION WERE MISLEADING.\nPlaintiffs contend U.J.I. 12.10 was not a proper instruction defining proximate cause since it does not apply the term to the violations of the statutes as given in the other instruction (13, 14 and 15) and thereby misleads the jury resulting in prejudice to plaintiffs.\nU.J.I. 12.10 states:\n\u201cThe proximate canse of an injury is that which in a natural and continuous sequence [unbroken by any independent intervening cause] produces the injury, and without which the injury would not have occurred. [It need not be the only cause, nor the last nor nearest cause. It is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes the injury].\u201d\nThe court gave only that portion which is italicized. No reason was stated for not giving the last bracketed portion.\nPlaintiffs objected to the omission of the last bracketed portion of U.J.I. 12.10 when they stated to the trial court:\n\u201cI submit to the Court that in this connection, where \u2014 I' think that this is an instruction that should be given where there is an issue of contributory negligence, as the Court has found that there is in this case. I think that in view of the statute, that the Court should instruct the jury on \u2014 that might have been violated by the plaintiff in this particular case, that the jury should be instructed in this regard, so that they may determine which negligence, even assuming that plaintiff was negligent, which negligence did cause the accident in question.\u201d\nThe \u201cDirection for Use\u201d of the last bracketed portion of U.J.I. 12.10 states that it \u201c * * * should be used only when there is evidence of a concurring or contributing cause. Ortega v. Texas-New Mexico Ry. Co., 70 N.M. 58, 379 [370] P.2d 201 (1962). Rix v. Town of Alamogordo, 42 N.M. 325, 77 P.2d 765 (1938).\u201d\nPlaintiffs contend that the last bracketed portion \"would have cleared, to some extent, the confusion caused by the jury being mislead into thinking that the plaintiff\u2019s [Sabina\u2019s] position, in .being on the left hand side of the road, was the only cause of the accident.\u201d They assert that this omission \u201cintroduced a false statement of law to the jury.\u201d We do not agree. At worst it was a curable omission.\nPlaintiffs\u2019 entire argument is based on the premise that contributory negligence was not an issue; but as we have shown above that premise is not well taken under the facts of this case. Furthermore, implicit in plaintiffs\u2019 contention are instructions Nos. 13, 14 and 15 which related to possible statutory violations by plaintiffs. However, taking all instructions as a whole, as we must (Garcia v. Barber\u2019s Super Markets, Inc., 81 N.M. 92, 463 P.2d 516 (Ct.App.1969)), we also have to consider instruction No. 12 which relates to defendant\u2019s possible violations in failing to control speed and following too closely.\nWe fail to see how the jury was misled into thinking Sabina\u2019s being on the wrong side of the road was the only cause of the accident. Instructions must be read as a whole and when so read, if they fairly represent all issues and applicable law, they are proper and a mere defect or omission in one instruction may be cured by another instruction. Chapin v. Rogers, 80 N.M. 684, 459 P.2d 846 (Ct.App.1969).\nIn light of the foregoing we fail to see how plaintiffs were prejudiced by the omission. Jewell v. Seidenberg, 82 N.M. 120, 477 P.2d 296 (1960). Section 21-2-1 (17) (10), N.M.S.A.1953 (Repl.Vol.1970).\n5. THE LAST TWO PARAGRAPHS OF INSTRUCTION NO. 1 ARE MISLEADING AND PREJUDICIAL.\nInstruction No. 1 reads:\n\u201cThe plaintiffs claim that they sustained damages and that the proximate cause thereof was one or more of the following claimed acts of negligence:\n\u201c1. The defendant did not have his car under control.\n\u201c2. The defendant was not keeping a proper lookout.\n\u201c3. The defendant was following behind plaintiff too closely.\n\u201cThe plaintiffs have the burden of proving that they sustained damage and that one or more of the claimed acts of negligence was the proximate cause thereof.\n\u201cThe defendant denies the plaintiffs\u2019 claims and asserts the following affirmative defenses:\n\u201cThe plaintiff Sabina Tafoya was contributorily negligent in that:\n\u201c1. She was driving to the left of the divider on the highway and actually driving the wrong way in the east bound lanes.\n\u201c2. That she stopped her car in the highway without signaling.\n\u201c3. That she stopped her car suddenly in the highway without sufficient reason.\n\u201cHie' defendant has \u25a0 the burden of proving the affirmative defenses.\n\u201cIf you find that plaintiffs have proved those claims required of them and that none of the defendant\u2019s affirmative defenses have been proved, then your verdict should be for the plaintiffs.\n\u201cIf on the other hand, you find that any one of the claims required to be proved by plaintiffs have not been proved or that any one of defendant\u2019s affirmative defenses have been proved, then your verdict should be for the defendant.\u201d\nThis instruction is U.J.I. 3.1. Plaintiffs contend it is prejudicial since it is poorly written and it confused the jury. Plaintiffs state that the jury could interpret the first part as plaintiffs must be able to prove all three of their claims. Such is not the language. The language reads \u201cone or more.\u201d\n6. INSTRUCTIONS 3, S, 10, 17 AND 27 IMPROPER EVEN THOUGH NOT DEVIATING FROM U.J.I. INSTRUCTIONS.\n(\u0430) Instruction No. 3 is the definition of contributory negligence and as discussed under points 1 and 2 contributory negligence was an issue in the case.\n(b) Instruction No. 5 is U.J.I. 13.12 on comparative negligence and states when contributory negligence of a plaintiff and negligence of a defendant is at issue the jury cannot compare negligence. Both issues were present, and, as the \u201cDirections for Use\u201d states, when both are present, the instruction is proper.\n(c) Instruction No. 10 is U.J.I. 12.3 \u201cDuty to Use Ordinary Care \u2014 Plaintiff.\u201d Plaintiffs failed to bring this to the court\u2019s attention. The objection was never made or preserved.\n(d) Instructions Nos. 17 and 27 are U.J.I. 17.8 and 14.1 respectively on \u201cNo Damages Unless Liability\u201d and \u201cLiability Must be Determined Before Damages.\u201d\nDefendant contends that Under Clinard v. Southern Pacific Company, 82 N.M. 55; 475 P.2d 321 (1970) both instructions need not be given if the court \u201cfinds and states of record its reasons why the proposed instruction is erroneous or otherwise improper.\u201d\nContrary to plaintiffs\u2019 contention we fail to see how we can construe the colloquy between the court and counsel as the court stating its reasons for .not using the instruction required by U.J.I. The record shows as follows:\n\u201cMR. BERRY: All right, sir.\nObject to the Court\u2019s Instruction Number Twenty-Seven, which I realize is a UJI instruction, but I submit that it\u2019s repetitive, it\u2019s repetitious. .\n\u201cTHE COURT: What\u2019s that one about?\n\u201cMR. BERRY: That you are not to discuss damages until you first determine the issue of liability.\n\u201cTHE COURT: That\u2019s one where I agreed with you, only under the directives of UJI, you\u2019re supposed to use it twice.\n\u201cMR. BERRY: I understand that, and I submit to the Court that UJI is wrong.\n\u201cTHE COURT: I agree with you, but once you have this set of rules, you\u2019re stuck with it.\u201d\nWe see this interchange as indicating that the court agreed that the instruction was repetitious but not as giving the court\u2019s reasons for not using the U.J.I. In fact the court did knowingly give the U.J.I. instruction. Clinard does not hold that a court may not give the instruction if it thinks it is repetitious. Rather it says that if a court refuses to give the U.J.I. it must state its reason in the record. Section 21-1-1(51) (1) (c), N.M.S.A.1953 (Repl. Vol.1970).\nAffirmed.\nIt is so ordered.\nSPIESS, C. J., and SUTIN, J., concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "O. Louis Puccini, Jr., Charles G. Berry, McAtee, Marehiondo & Michael, Albuquerque, for plaintiffs-appellants.", "Daniel C. Lili, LeRoi Farlow, Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "487 P.2d 1093\nMelcor TAFOYA and Sabina Tafoya, his wife, Plaintiffs-Appellants, v. Bobby WHITSON, Defendant-Appellee.\nNo. 544.\nCourt of Appeals of New Mexico.\nJune 18, 1971.\nRehearing Denied July 14, 1971.\nCertiorari Denied Aug. 12, 1971.\nO. Louis Puccini, Jr., Charles G. Berry, McAtee, Marehiondo & Michael, Albuquerque, for plaintiffs-appellants.\nDaniel C. Lili, LeRoi Farlow, Albuquerque, for defendant-appellee." }, "file_name": "0023-01", "first_page_order": 149, "last_page_order": 154 }