{ "id": 2839428, "name": "Johnnie ARCHIBEQUE, as personal representative and administrator of the Estate of James F. Perkins, Deceased, Plaintiff-Appellant, v. B. J. HOMRICH, Administrator of the Estate of Felix J. Roberson, Jr., Deceased, Defendant-Appellee", "name_abbreviation": "Archibeque v. Homrich", "decision_date": "1975-12-15", "docket_number": "No. 10366", "first_page": "527", "last_page": "532", "citations": [ { "type": "official", "cite": "88 N.M. 527" }, { "type": "parallel", "cite": "543 P.2d 820" } ], "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": "80 N.M. 564", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365285 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0564-01" ] }, { "cite": "49 N.M. 157", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841502 ], "weight": 2, "year": 1945, "pin_cites": [ { "parenthetical": "speeding" }, { "parenthetical": "speeding" } ], "opinion_index": 0, "case_paths": [ "/nm/49/0157-01" ] }, { "cite": "54 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582044 ], "weight": 2, "year": 1949, "pin_cites": [ { "parenthetical": "sideswiping" }, { "parenthetical": "sideswiping" } ], "opinion_index": 0, "case_paths": [ "/nm/54/0005-01" ] }, { "cite": "54 N.M. 119", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1581990 ], "weight": 2, "year": 1950, "pin_cites": [ { "parenthetical": "failure to put flares out on road and failure to park off pavement" }, { "parenthetical": "failure to put flares out on road and failure to park off pavement" } ], "opinion_index": 0, "case_paths": [ "/nm/54/0119-01" ] }, { "cite": "77 N.M. 717", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808916 ], "weight": 2, "year": 1967, "pin_cites": [ { "parenthetical": "failure to adjust furnace" }, { "parenthetical": "failure to adjust furnace" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0717-01" ] }, { "cite": "77 N.M. 769", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2807596 ], "weight": 3, "year": 1967, "pin_cites": [ { "parenthetical": "failure to put lamp near vehicle at night" }, { "parenthetical": "failure to put lamp near vehicle at night" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0769-01" ] }, { "cite": "61 N.M. 77", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5318637 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/61/0077-01" ] }, { "cite": "45 P.2d 425", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1935, "opinion_index": 0 }, { "cite": "7 Cal.App.2d 77", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2220464 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/cal-app-2d/7/0077-01" ] }, { "cite": "278 N.W. 307", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1938, "opinion_index": 0 }, { "cite": "224 Iowa 1274", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8647102 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/iowa/224/1274-01" ] }, { "cite": "85 N.M. 567", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772166 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0567-01" ] }, { "cite": "59 N.M. 43", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589295 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/59/0043-01" ] }, { "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" ] }, { "cite": "77 N.M. 249", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2807427 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0249-01" ] }, { "cite": "87 N.M. 25", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2833398 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/87/0025-01" ] }, { "cite": "104 A. 639", "category": "reporters:state_regional", "reporter": "A.", "year": 1918, "opinion_index": 0 }, { "cite": "7 Del. (Boyce) 146", "category": "reporters:state", "reporter": "Boyce", "case_ids": [ 423039 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/del/30/0146-01" ] }, { "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": "83 N.M. 285", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331794 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0285-01" ] }, { "cite": "84 N.M. 717", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766048 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0717-01" ] }, { "cite": "84 N.M. 456", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2762845 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0456-01" ] }, { "cite": "69 N.M. 262", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2787509 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0262-01" ] }, { "cite": "66 N.M. 201", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2846032, 2846315 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/66/0201-02", "/nm/66/0201-01" ] }, { "cite": "76 N.M. 587", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503777 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0587-01" ] } ], "analysis": { "cardinality": 863, "char_count": 17074, "ocr_confidence": 0.801, "pagerank": { "raw": 3.942283700429783e-07, "percentile": 0.9034771911412596 }, "sha256": "bf29b25bfcfe1beb8ea125e12181c804da9667a002adefeffdf92dc614ebf5eb", "simhash": "1:33ecfdb3f416557f", "word_count": 2888 }, "last_updated": "2023-07-14T21:34:46.516747+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "STEPHENSON and MONTOYA, JJ., concur." ], "parties": [ "Johnnie ARCHIBEQUE, as personal representative and administrator of the Estate of James F. Perkins, Deceased, Plaintiff-Appellant, v. B. J. HOMRICH, Administrator of the Estate of Felix J. Roberson, Jr., Deceased, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nSOSA, Justice.\nPlaintiff-appellant, personal representative and administrator of the estate of James F. Perkins, deceased, filed suit against the administrator of the estate of Felix J. Roberson, Jr., also deceased. The suit was for damages for wrongful death. From a jury verdict for the defendant, plaintiff appealed to the Court of Appeals. That court pursuant to section 16 \u2014 7\u201414(C) (2) N.M.S.A.1953 (Repl.Vol. 4) certified the case to this court for final decision.\nPlaintiff\u2019s decedent and defendant\u2019s decedent were both killed in a one car accident. Defendant\u2019s decedent was found on the driver\u2019s side of the front seat slumped over the steering wheel and plaintiff\u2019s decedent was on the passenger\u2019s side. It is apparent that the two died instantly, since there was no indication that either had moved after the accident. Plaintiff\u2019s decedent, a 21-year-old serviceman stationed in Idaho, was driving to Texas to be married. In the afternoon of July 15, 1970, he called his fiance to advise her of the possibility of his earlier arrival because he had picked up a hitchhiker, the defendant\u2019s decedent, who had offered to help with the driving.\nThere were no eyewitnesses to the accident and the evidence at trial consisted of the testimony of the investigating officer and experts on accident reconstruction. The state police investigation revealed that the 1969 Opel Kadette stationwagon was headed in a southerly direction on State Road 44 when it ran off the west side of the highway. It traveled 274 feet on the shoulder, returned to the highway, crossed over the north-bound traffic lane and onto the east shoulder, and plunged into a 14-foot-deep arroyo. From the point it returned to the highway to the point it left on the east side, the car traversed an arc measuring 73 feet diagonally (the highway was only 22 feet wide at this point). The car traveled 83 feet along the east edge of the pavement before plunging into the arroyo, which was some 24 feet from the east edge of the road. The car rolled over once in the arroyo and was found facing west in an upright position. The highway was straight and level at the site of the accident, and it was dry on the day of the accident. The distance from where the vehicle first left the highway to its final resting place was 430 feet.\nOfficer Viramontes testified that based upon his past experience in investigation it was his opinion that \u201cthe driver apparently dozed off, fell asleep at the wheel, at which time the vehicle went off the right hand side of the road in a gradual manner and the tires started kicking up gravel or weeds underneath the car, which apparently woke the driver up, at which time he realized he was off the road and tried to get back on the road, and when he did he overcorrected and his car went sideways, partially sideways, across the road and down the embankment.\u201d\nThe court instructed the jury on res ipsa loquitur, contributory negligence, sudden emergency, and agency. Upon appeal the plaintiff urges the following points for reversal :\nPOINT I The court\u2019s statement of the defendant\u2019s \u201cdefenses\u201d did not comply with the requirement of New Mexico Uniform Jury Instructions and deprived plaintiff of a fair trial. The possibility that the injury occurred without negligence on the part of the defendant\u2019s decedent is not an affirmative defense to an action based on the doctrine of res ipsa loquitur.\nPOINT II The court improperly instructed the jury on the issue of contributory negligence. There was no evidence in the record to support a finding by the jury that the plaintiff\u2019s decedent, the passenger in the vehicle, failed to exercise ordinary care for his own safety.\nPOINT III There was no evidence that defendant\u2019s decedent was confronted with a sudden emergency at the time the vehicle left the roadway. The court\u2019s instruction on the concept of sudden emergency encouraged the jury to engage in guess and speculation and deprived plaintiff of a fair trial.\nPOINT IV The court\u2019s instruction that there was a presumption that defendant\u2019s driver was acting as the agent of plaintiff\u2019s decedent in driving the vehicle interjected \u2022 a false issue in the case and deprived plaintiff of a fair trial.\nPOINT V Defendant\u2019s decedent was guilty of negligence per se. Plaintiff was entitled to have the jury instructed on the driver\u2019s statutory duty to drive on the right hand of the roadway and to keep the vehicle within a single traffic lane.\nPOINT VI Plaintiff was entitled to a directed verdict on the issue of liability because defendant failed to show that the driver\u2019s failure to keep the vehicle on the roadway was due to something other than the driver\u2019s negligence.\nI. Jury Instructions\nAs points 1, 2, 3 and 4 deal primarily with objections to instructions as given we will deal with them all under one point. Plaintiff-appellant argued that the first jury instruction included an improper affirmative defense, and the instructions on contributory negligence and sudden emergency were improperly given because there was no evidence to support them. We have difficulty with the following jury instructions :\nINSTRUCTION NO. 1. For the benefit of Marie Perkins Foust, plaintiff Johnnie Archibeque, Sr., claims damages from defendant B. J. Homrich for the death of James Perkins which plaintiff claims was proximately caused by the negligence of Felix Roberson, Jr., in that:\n1. The death of James Perkins was proximately caused by the fact that the automobile, which was under the exclusive control and management of Felix Roberson, Jr., ran off the side of the highway.\n2. The event causing the death of James Perkins was of a kind which ordinarily does not occur in the absence of negligence on the part of the person driving the automobile.\nPlaintiff has the burden of proving that damages were sustained and that the negligence of Felix Roberson, Jr. was the proximate cause thereof.\nThe defendant denies that the doctrine of res ipsa loquitur applies in this case and denies that there is any proof on the part of the defendant\u2019s decedent that he was negligent and affirmatively states that the accident in question could have occurred without negligence on the part of the defendant\u2019s decedent and that there is not any proof or facts available as to the cause of the accident in question. And further the defendant claims James Perkins was guilty of contributory negligence which was the proximate cause of his death.\nThe defendant has the burden of proving his allegations and defenses stated herein. .\nINSTRUCTION NO. 2. Plaintiff relies in part upon the doctrine of \u201cres ipsa loquitur\u201d which is a Latin phrase and means \u201cthe thing speaks for itself.\u201d\nIn order for the jury to find Felix Roberson, Jr., negligent under this doctrine, plaintiff has the burden of proving each of the following propositions:\n1. That the death of James Perkins \u2022 was proximately caused by an automobile, which was under the exclusive control and management of Felix Roberson, Jr. \u25a0\n2. That the event causing the death of Janies Perkins was of a kind which ordinarily does not occur in the absence of negligence on the part of the person in control of the automobile.\nIf you find that each of these propositions has been proved, then the law permits you to infer that Felix Roberson, Jr., was negligent and that the death of James Perkins proximately resulted from such negligence.\nIf, on the other hand, you find that any one of the propositions have not been proved, or if you find, notwithstanding the proof of these propositions, that Felix Roberson, Jr., used ordinary care for the safety of others in his control and management of the automobile, then plaintiff cannot recover under the doctrine of res ipsa loquitur.\nINSTRUCTION NO. 8. Where a non-owner is driving and the owner is present in the car a presumption exists that the driver is the agent of the owner. This presumption is based on the theory that the owner present in the car has the right to control the driver. Such presumption may be overcome by evidence to the contrary.\nINSTRUCTION NO. 14. A person who, without negligence on his part, is suddenly and unexpectedly confronted with peril arising from either the actual presence of or the appearance of imminent danger to himself or another, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments.\nHis duty is to exercise only the care that a reasonably prudent person would exercise in the same situation.\nIf at that moment he does what appears to him to be the best thing to do, and if his choice and manner of action are the same as might have been followed by any reasonably prudent person under the same conditions then he has done all the law requires of him, even though in the light of after events, it might appear that a different course would have been better and safer.\nWe find that the first instruction was improper. First, the \u201c. . . [defendant] affirmatively states . \\ .\u201d part is postured as an affirmative defense. However, it is not an affirmative defense but in effect, merely a denial and should have been stated as such. In the second jury instruction the \u201cin part\u201d must be deleted since the trial court only allowed one theory to go to the jury. We have reviewed the trial record and find no evidence to the effect that the plaintiff was contribu-torily negligent. Similarly, with respect to jury instruction number 14, there was no evidence to the effect that a sudden emergency arose. We have held that it is error to instruct on issues which are unsupported by the evidence or which present a false issue. State v. Atchison, Topeka and Santa Fe Railway Co., 76 N.M. 587, 417 P.2d 68 (1966); Terry v. Biswell, 66 N.M. 201, 345 P.2d 217 (1959). The testimony of defendant\u2019s expert, Don Evans, amounted to speculation and conjecture as to how the accident might have occurred. He stated that in accidents such as this one an insect could have been in the car; cigarette ashes could have blown into the eyes of the driver; an animal could have run out in front of the driver; the driver could have been ill; or another vehicle could have run this vehicle off the road. To base a jury instruction on speculation or conjecture is not proper, and the interjection of a false issue and the giving of instructions not warranted by the evidence require a reversal. Reed v. Styron, 69 N.M. 262, 365 P.2d 912 (1961); Delgado v. Alexander, 84 N.M. 456, 504 P.2d 1089 (Ct.App.1972), aff\u2019d on other grounds, 84 N.M. 717, 507 P.2d 778 (1973); Aragon v. Speelman, 83 N.M. 285, 491 P.2d 173 (Ct.App.1971); Garcia v. Barber\u2019s Super Markets, Inc., 81 N.M. 92, 463 P.2d 516 (Ct.App.1969).\nII. Res Ipsa Loquitur\nThe instant case presents the classic problem of whether the circumstantial evidence is sufficient to prove negligence on the part of the defendant. Negligence must be proved, and generally never will be presumed. Kemp v. McNeill Cooperage Co., 7 Del. (Boyce) 146, 104 A. 639 (1918). The mere fact that accidents, injuries, or damages have occurred is not evidence that someone has been negligent. Waterman v. Ciesielski, 87 N.M. 25, 528 P.2d 884 (1974). Some form of proof, or evidence, must be presented which would lead reasonable men to conclude that it is more likely that the event was caused by negligence than that it was not. The evidence must meet the burden of proof by making it appear more likely than not. There is no such thing as a causeless accident; accidents are caused occurrences. The crucial fact question is whether or not the cause of the accident was negligence. One of the theories the plaintiff sought to rely upon to prove defendant\u2019s negligence was res ipsa loquitur.\nThe traditional elements of res ipsa lo-quitur, derived from 4 J. Wigmore, Evidence \u00a7 2509 (1st ed. 1905), are the following: (1) the event must be a kind which ordinarily does not occur in the absence of someone\u2019s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. The first two elements are most often considered to be the elements of res ipsa loquitur in New Mexico, while the third element is subsumed under contributory negligence. See Waterman v. Ciesiel-ski, supra; Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966); Renfro v. J. D. Coggins Company, 71 N.M. 310, 378 P.2d 130 (1963); Tafoya v. Las Cruces Coca-Cola Bottling Company, 59 N.M. 43, 278 P.2d 575 (1955); Tapia v. McKenzie, 85 N.M. 567, 514 P.2d 618 (Ct.App.1973).\nAppellant argued that instruction number 8 interjected the false issue of agency, whereby the jury could conjecture that the driver\u2019s negligence could be imputed to the passenger. Appellee countered that the instruction was relevant to the issue of exclusive control, part of the second element of res ipsa loquitur. Appellee\u2019s theory has generally only been used by third parties against the driver and the driver\u2019s passenger, not between driver and passenger. See Mein v. Reed, 224 Iowa 1274, 278 N.W. 307 (1938); Price v. McDonald, 7 Cal.App.2d 77, 45 P.2d 425 (1935). \u201cExclusive control\u201d is not a rigid, inflexible term as appellee would have us believe. See W. Prosser, Law of Torts \u00a7 39 (4th ed. 1971). In this case agency principles should not have been interjected into the issue of exclusive control. The trial court erred in submitting this instruction to the jury.\nAppellant asserts that once the elements of res ipsa loquitur have been established, it compels the inference of negligence by the fact finder. This is not so. Once the elements of res ipsa loquitur have been established, it merely permits and does not compel the inference of negligence by the fact finder. Tuso v. Markey, 61 N.M. 77, 294 P.2d 1102 (1956). The fact finder is free to accept or to reject the inference.\nIII. Negligence Per Se\nThe plaintiff argued that the trial court improperly denied his instruction on negligence per se. Plaintiff argued that the defendant, by running off the highway, had violated \u00a7 64-18-8 and \u00a7 64\u201418-16 N.M.S.A. 1953 (2d. Repl.Vol. 9, pt. 2, 1972) and should be found negligent as a matter of law.\nThe test for negligence per se is the following: (1) there must be a statute which prescribes certain actions or defines a standard of conduct, either explicitly or implicitly, (2) the defendant must violate the statute, (3) the plaintiff must be in the class of persons sought to be protected by the statute, and (4) the harm or injury to the plaintiff must generally be of the type the legislature through the statute sought to prevent. See Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967) (failure to put lamp near vehicle at night); Sanchez v. J. Barron Rice, Inc., 77 N.M. 717, 427 P.2d 240 (1967) (failure to adjust furnace) ; Hisaw v. Hendrix, 54 N.M. 119, 215 P.2d 598 (1950) (failure to put flares out on road and failure to park off pavement) ; Turrietta v. Wyche, 54 N.M. 5, 212 P.2d 1041 (1949) (sideswiping); Clay v. Texas-Arizona Motor Freight, 49 N.M. 157, 159 P.2d 317 (1945) (speeding); Dahl v. Turner, 80 N.M. 564, 458 P.2d 816 (Ct.App.1969) (speeding); Prosser \u00a7 36, supra.\nSections 64-18-8 and -16 supra require that all motorists drive on the right hand side of the road except in certain instances. This the defendant, at least for part of the final 347 feet, failed to do. Whom the legislature sought to protect is not explicitly stated; however, it is reasonable to assume that it is the motoring public in general, including passengers such-as the plaintiff. The harm sought to be prevented by the statutes apparently is head-on collisions or sideswiping the opposite moving traffic. It is doubtful that the statute could have been intended by the legislature to apply to a situation such as this. Thus, the district court properly refused to submit this instruction to the jury.\nPlaintiff argued that the trial \"court should have granted plaintiff a directed verdict on the issue of liability because defendant was negligent per se. Once negligence per se is found, the fact finders would still have to determine whether the negligence per se was the actual and proximate cause of the accident. Sanchez v. J. Barron Rice, Inc., supra; Fitzgerald v. Valdez, supra. Thus, the judge could not have granted a directed verdict on the issue of liability.\nThe trial court is reversed and the cause is remanded with instructions for a new trial to proceed in a manner not inconsistent herewith.\nSTEPHENSON and MONTOYA, JJ., concur.", "type": "majority", "author": "SOSA, Justice." } ], "attorneys": [ "Smith, Ransom & Gilstrap, Michael Fitzpatrick, Albuquerque, for plaintiff-appellant.", "Farlow & Lili, Sarah M. Bradley, Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "543 P.2d 820\nJohnnie ARCHIBEQUE, as personal representative and administrator of the Estate of James F. Perkins, Deceased, Plaintiff-Appellant, v. B. J. HOMRICH, Administrator of the Estate of Felix J. Roberson, Jr., Deceased, Defendant-Appellee.\nNo. 10366.\nSupreme Court of New Mexico.\nDec. 15, 1975.\nSmith, Ransom & Gilstrap, Michael Fitzpatrick, Albuquerque, for plaintiff-appellant.\nFarlow & Lili, Sarah M. Bradley, Albuquerque, for defendant-appellee." }, "file_name": "0527-01", "first_page_order": 557, "last_page_order": 562 }