{ "id": 2773232, "name": "Carolyn B. HILL, Administratrix of the Estate of Michael D. Hill, Deceased, Plaintiff-Appellant, v. Frank R. BURNWORTH, Defendant-Appellee", "name_abbreviation": "Hill ex rel. Hill v. Burnworth", "decision_date": "1973-09-26", "docket_number": "No. 1050", "first_page": "615", "last_page": "618", "citations": [ { "type": "official", "cite": "85 N.M. 615" }, { "type": "parallel", "cite": "514 P.2d 1312" } ], "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": "52 N.M. 193", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579525 ], "weight": 2, "year": 1948, "pin_cites": [ { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/nm/52/0193-01" ] }, { "cite": "84 N.M. 524", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766340 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0524-01" ] }, { "cite": "212 P. 739", "category": "reporters:state_regional", "reporter": "P.", "year": 1923, "opinion_index": 0 }, { "cite": "28 N.M. 393", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842230 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nm/28/0393-01" ] }, { "cite": "67 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2717056 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0072-01" ] }, { "cite": "69 N.M. 443", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2787548 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/69/0443-01" ] }, { "cite": "83 N.M. 596", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334870 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0596-01" ] }, { "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": "82 N.M. 271", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331919 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0271-01" ] }, { "cite": "84 N.M. 399", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2762121 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0399-01" ] }, { "cite": "82 N.M. 352", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335557 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0352-01" ] } ], "analysis": { "cardinality": 515, "char_count": 8495, "ocr_confidence": 0.698, "pagerank": { "raw": 1.0548259269617161e-07, "percentile": 0.5550916288941942 }, "sha256": "163450147081826f5911f663ceddac88b27c27842e21676d4ff9f472444b0217", "simhash": "1:af7ad8023b009dac", "word_count": 1432 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, C. J., and SUTIN, J., concur." ], "parties": [ "Carolyn B. HILL, Administratrix of the Estate of Michael D. Hill, Deceased, Plaintiff-Appellant, v. Frank R. BURNWORTH, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nHERNANDEZ, Judge.\nPlaintiff appeals from a jury verdict in favor of defendant in a wrongful death action which arose out of an intersection collision that resulted in the death of her husband.\nWe affirm.\nPlaintiff assigns four points of error.\nThe first point raised is that the trial court erred in permitting defendant\u2019s expert witness to answer a hypothetical question based, in part, on facts not in evidence. The facts not in evidence according to plaintiff were \u201cthat it took defendant four seconds to travel from the stop sign to the point of impact.\u201d Plaintiff\u2019s objection, however, was as follows:\n\u201c * * * this hypothetical question assumes facts which are not in evidence. As a matter of fact, they are contrary to the testimony of Mr. Burnworth, who said that the vehicle was at Sycamore, about half a block away and Mrs. Burn-worth testified that the lights of other vehicle were at Sycamore.\u201d\nThe objection as worded did not call the trial court\u2019s attention to the matter now complained of. Hence it will be treated as if no objection had been made. Williams v. Vandenhoven, 82 N.M. 352, 482 P.2d 55 (1971). We further point out that the expert witness had testified earlier, without objection, that in his opinion it. took four seconds for the Burnworth vehicle to travel from the stop sign to the point of impact. As another part of point I, plaintiff argues that the trial court erred \u201cin refusing to order the defendants to produce for plaintiff\u2019s inspection and proper cross-examination of the said witness the source of the facts upon which the hypothetical testimony was based.\u201d We believe that plaintiff means to say \u201cthe facts upon which the hypothetical question was based\u201d not the \u201chypothetical testimony.\u201d Plaintiff refers to a synopsis of an interview between Mr. Burn-worth and his attorney which had been furnished the expert witness. After making his demand for the synopsis and the response by defendant\u2019s counsel the following colloquy took place: \u201c T think maybe you can inquire of him as to what he predicated the matter on, other than what he\u2019s testified to here, Mr. Spence\u2019. Mr. Spence: 'All right. We won\u2019t belabor the point, your honor.\u2019 \u201d It is our opinion that by these words plaintiff abandoned his prior request and cannot now be heard to complain. We add that plaintiff did not question the witness further as to whether he based his opinion on information contained in the synopsis. Compare State v. Snow, 84 N.M. 399, 503 P.2d 1177 (Ct.App.1972).\nPlaintiff\u2019s second point of error was that the trial court erred in \u201crejecting plaintiff\u2019s tender of the testimony of her own expert witness in rebuttal to that of the testimony of defendant\u2019s expert witness.\u201d The tender went to acceleration rate per second over a four second interval. The witness\u2019 answers, as to his qualifications to testify as to this rate, indicate a lack of qualification. In not allowing this testimony, the trial court exercised its discretion, and its ruling was neither an abuse of discretion nor manifestly wrong. Wood v. Citizens Standard Life Insurance Company, 82 N.M. 271, 480 P.2d 161 (1971); Hayes v. Hagemeier, 75 N.M. 70, 400 P.2d 945 (1963).\nPlaintiff\u2019s third point of error is that the court erred in giving instruction No. 5 which was to the effect that by statute it is unlawful for a person who is under the influence of intoxicating liquor to operate any vehicle; that the speed limit at the place where the accident occurred was 45 miles per hour and if they found that the plaintiff\u2019s decedent violated either of these statutes that such conduct constituted negligence as a matter of law.\nIt was the trial court\u2019s duty to instruct the jury on the law applicable to issues of fact raised by the proof. Horger v. Mutual of Omaha Insurance Company, 83 N.M. 596, 495 P.2d 376 (1972); Gallegos v. McKee, 69 N.M. 443, 367 P.2d 934 (1962). One of defendant\u2019s affirmative defenses was contributory negligence and the record discloses substantial evidence as to decedent\u2019s violation of both the statutes referred to in the instruction. The trial court did not err in giving this instruction.\nPlaintiff\u2019s fourth point of error is that the trial court erred in denying her motion for a new trial on the grounds of newly discovered evidence pursuant to Rule 60(b)(2) [\u00a7 21-1-1 (60) (b)(2), N.M.S.A. 1953 (Repl. Vol. 4)]. \u201cSuch a motion is addressed to the discretion of the trial court.\u201d Latta v. Harvey, 67 N.M. 72, 352 P.2d 649 (1960). The prerequisites for granting of a new trial are:\n\u201c(1) It must be such \u00bfs will probably change the result if a new trial is granted;\n\u201c(2) it must have been discovered since the trial;\n\u201c(3) it must be such as could not have been discovered before the trial by the exercise of due diligence;\n\u201c(4) it must be material to the issue;\n\u201c(5) it must not be merely cumulative to the former evidence;\n\u201c(6) it must not be merely impeaching or contradictory to the former evidence.\u201d\nState v. Luttrell, 28 N.M. 393, 212 P. 739 (1923). If the movant fails to establish any of the six grounds, the motion is properly denied. See Sierra Blanca Sales Co., Inc. v. Newco Industries, Inc., 84 N.M. 524, 505 P.2d 867 (Ct.App.1972).\n' After considering the affidavit and evidence offered in support of the motion, the trial court made findings consistent with the above requirements.\nIt found that the evidence was not such as could not have been discovered by the exercise of due diligence prior to trial. It also found the evidence was not of a character \u201c * * * as would with any reasonable probability compel a different result in the event of a new trial. * * * \u201d See Floeck v. Hoover, 52 N.M. 193, 200, 195 P.2d 86 (1948). While plaintiff complains of the phraseology of this finding, we do not understand the trial court to be using a standard different from the requirement that it be such \u201cas will probably change the result if a new trial is granted.\nBoth of these findings, the \u201cdue diligence\u201d and \u201cprobably change the result\u201d necessarily involve the trial court\u2019s evaluation of the evidence.\nIt is undisputed that the witness Cooper was a passenger in decedent\u2019s vehicle at the time of the accident. Plaintiff attempted, to locate him prior to trial. In this search, plaintiff learned that Cooper had relatives in the Portales area. The uncontradicted statement of counsel is that he twice employed the services of a private investigator in the Portales area in an effort to locate Cooper. Yet, Cooper\u2019s evidence at the motion hearing is that he was in contact with his daughter periodically (sending her money) and that, when he telephoned his daughter, subsequent to the trial, the daughter informed him that decedent\u2019s wife had left a telephone number for Cooper to call. On cross-examination, Cooper agreed with defense counsel that had such a message been left for him earlier it could have been given to him during his earlier contacts with his daughter. He also admitted that his daughter had his address during this critical time and had written to him.\nThere are contradictory inferences from the evidence as to \u201cdue diligence.\u201d With this conflict, we-cannot say the trial court abused its discretion in denying the motion on this ground.\nCooper\u2019s testimony went primarily to decedent\u2019s drinking and speed. The trial court necessarily evaluated that testimony in determining it would not, to any reasonable probablity, change the result if a new trial were granted. Cooper testified that while with decedent in a bar shortly before the accident, decedent had 2 or 3 beers, and that decedent was in the bar when Cooper arrived. The evidence at trial was 3 or 4 beers. Cooper testified that decedent\u2019s speed before the collision was 45 miles per hour. While this speed testimony would have been \u201cnew\u201d, it had to be evaluated in the light of the higher speeds testified to at trial and the physical facts of the accident. In the light of the trial record, we cannot say the trial court abused its discretion in ruling that the newly discovered testimony would not, to any reasonable probability, change the result.\nAffirmed.\nIt is so ordered.\nWOOD, C. J., and SUTIN, J., concur.", "type": "majority", "author": "HERNANDEZ, Judge." } ], "attorneys": [ "John S. Spence, Alamogordo, for plaintiff-appellant.", "Stuart D. Shanor, Hinkle, Bondurant, Cox & Eaton, Roswell, for defendant-appellee." ], "corrections": "", "head_matter": "514 P.2d 1312\nCarolyn B. HILL, Administratrix of the Estate of Michael D. Hill, Deceased, Plaintiff-Appellant, v. Frank R. BURNWORTH, Defendant-Appellee.\nNo. 1050.\nCourt of Appeals of New Mexico.\nSept. 26, 1973.\nJohn S. Spence, Alamogordo, for plaintiff-appellant.\nStuart D. Shanor, Hinkle, Bondurant, Cox & Eaton, Roswell, for defendant-appellee." }, "file_name": "0615-01", "first_page_order": 677, "last_page_order": 680 }