{ "id": 1557184, "name": "James R. LEWIS, Plaintiff-Appellee, v. Delora ENGLISH, Defendant-Appellant", "name_abbreviation": "Lewis v. English", "decision_date": "1978-12-12", "docket_number": "No. 3206", "first_page": "362", "last_page": "365", "citations": [ { "type": "official", "cite": "92 N.M. 362" }, { "type": "parallel", "cite": "588 P.2d 563" } ], "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": "92 N.M. 76", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557036 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "1290" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0076-01" ] }, { "cite": "79 N.M. 317", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747411 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0317-01" ] }, { "cite": "67 N.M. 10", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715080 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0010-01" ] }, { "cite": "70 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2850736 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "5" }, { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nm/70/0001-01" ] }, { "cite": "154 P. 691", "category": "reporters:state_regional", "reporter": "P.", "weight": 4, "year": 1916, "pin_cites": [ { "page": "695" }, { "page": "697" }, { "page": "697-98" } ], "opinion_index": 0 }, { "cite": "21 N.M. 330", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2386609 ], "weight": 4, "year": 1916, "pin_cites": [ { "page": "347" }, { "page": "353" }, { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nm/21/0330-01" ] }, { "cite": "90 N.M. 215", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870844 ], "weight": 8, "pin_cites": [ { "page": "218" }, { "page": "491" }, { "page": "217" }, { "page": "490" }, { "page": "217" }, { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0215-01" ] } ], "analysis": { "cardinality": 558, "char_count": 10282, "ocr_confidence": 0.801, "pagerank": { "raw": 4.5330875625009783e-08, "percentile": 0.2838632677040244 }, "sha256": "f09f4e9d44408d81f500ead9650c5457673edfe7b7b8c4e7beb6097ece21c1a9", "simhash": "1:3583d806bfe9770a", "word_count": 1758 }, "last_updated": "2023-07-14T17:06:13.817562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ. (concurring in result only)." ], "parties": [ "James R. LEWIS, Plaintiff-Appellee, v. Delora ENGLISH, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nLewis sued English for damages sustained in a motor vehicle collision in Bernalillo County. English counterclaimed based on the doctrine of last clear chance. The trial court granted Lewis summary judgment on English\u2019s counterclaim and English appeals. We affirm.\nThese parties are in the Court of Appeals for the second time as a result of the same accident. In the first appeal, Catalano v. Lewis, 90 N.M. 215, 561 P.2d 488 (Ct.App.1977), English was represented by Catalano, her natural parent and guardian ad litem. In that case, which was filed in Valencia County, English sued Lewis on the theory of last clear chance. Summary judgment in favor of Lewis was affirmed by this Court but affirmance was based upon the fact that English was contributively negligent as a matter of law. In reviewing the evidence presented in Catalano, including the affidavit of English\u2019s expert witness, we concluded as a matter of law the doctrine of last clear chance was not applicable. However, the opinion stated that:\n. If the evidence in the case of Lewis v. English, supra, [the instant case], is supplemented on the issues decided in this case, this opinion shall not control, otherwise it shall control. . [Emphasis added.] [90 N.M. at 218, 561 P.2d at 491.]\nThe purpose of this language was to avoid the doctrine of res judicata and to accord English a second opportunity to proceed against Lewis under the doctrine of last clear chance. It was fair to give plaintiff this benefit because Lewis created two separate and independent actions by filing suit against English in Bernalillo County four months after the Catalano case had been filed in Valencia county. Had Lewis filed a counterclaim in the Catalano action in Valencia County a single appeal would have resolved all the issues.\nIn Catalano, the following facts were established:\nAt the place of the intersection collision, Coors Road, a four-lane highway, ran north and south. St. Joseph\u2019s Drive, a two-lane road, ran east, from the west end of Coors Road, to the University of Albuquerque. The posted speed limit on Coors Road was 50 m. p. h. The intersection was controlled by a traffic signal with an intermittent flashing amber light for north and southbound traffic. No turning lanes were provided for southbound traffic turning left onto St. Joseph\u2019s Drive. There were no adverse weather conditions.\nDelora was driving south on Coors Road in the right-hand lane. As she approached the intersection with St. Joseph\u2019s Drive, a vehicle in front of her, also in the right-hand lane, was travelling at 50 m. p. h. A truck ahead of this vehicle was moving in the left-hand lane. Delora swiftly zigzagged past these vehicles and made an illegal left turn from the right-hand lane on St. Joseph\u2019s Drive into the northbound lanes of Coors Road. At this moment, defendant Lewis, driving north on Coors Road, was at or close to the intersection. Delora\u2019s vehicle was right in front of him. Defendant applied his brakes and attempted to turn right to avoid the accident. In the matter of time, the collision occurred at the snap of the fingers. [90 N.M. at 217, 561 P.2d at 490.]\nThe solitary question in this appeal is: Did English present supplementary evidence to avoid the conclusion reached in Catalano on last clear chance?\nLewis\u2019 deposition was the only evidence advanced by English to supplement the record. This deposition testimony was not sufficient to sustain the English counterclaim of last clear chance.\nIn his deposition, Lewis states that he saw English when he was about 100 yards from the intersection light. English was driving south on Coors Road toward the intersection; Lewis was travelling north at 50 m. p. h. or 73 feet a second. English\u2019s car slowed a bit. Lewis then checked the traffic light, and when he looked to the road again, he saw the English car in front of him. As the English car darted in front of him, he simultaneously hit his brakes and the English car. The testimony is uncontradicted.\nIn seeking to establish that Lewis had the last clear chance to avoid the accident, English submitted an affidavit by an expert witness which stated that:\nIf Mr. Lewis had decided to panic stop when he first perceived the [initial braking and slowing] movement of the Pinto he could have stopped well before reaching the intersection and the point of impact.\nThe factual questions crucial to this appeal are at what point did Lewis become aware of English\u2019s danger and what opportunity did Lewis have to prevent the accident. The expert assumes that Lewis was aware of her danger at the point he saw her car slow, i. e., when Lewis was 100 yards from the intersection. But the evidence does not support this assumption. Too many questions remain unanswered.\nWhen Lewis was a hundred yards south of the intersection, at what distance north of the intersection was the English car positioned? At what speed was it travelling south and to the point of collision? At what point in time thereafter did the car swerve to the left at the intersection, cross almost four lanes of traffic and dart in front of the Lewis car? What period of time elapsed from English\u2019s sudden left turn to the point of collision? At what point in time, if at all, could Lewis see and know that the English car had made the sudden left turn and was travelling in Lewis\u2019 direction? These facts are all unknown.\nWhat we do know is that it took both parties four seconds to reach the point of collision in Lewis\u2019 lane of traffic. The expert\u2019s opinion does not state how Lewis in this four second interval could have prevented the accident. When Lewis first saw English slow down, he did not have a duty to make a \u201cpanic stop.\u201d Before English completed the left turn and created a dangerous condition which placed her in a position of peril, Lewis had no duty to react with proper caution. His duty arose after the left turn was made and the English car was within his vision. This was almost instantaneous. It could not have prevented the accident. Catalano is dispositive on the issue of last clear chance. In Catalano, we said:\nThe defendant must have a clear chance, by the exercise of ordinary care, to avoid injury to the plaintiff. (Citation omitted). Were we to apply the mathematical computations necessary, we hold, as a matter of law, that last clear chance was not applicable. [90 N.M. at 217, 561 P.2d at 490.]\nFor the first time during oral argument, English takes us back to Thayer v. D. & R. G. R. R. Co., 21 N.M. 330, 154 P. 691 (1916) where the court said:\nIn other words, in an action predicated upon the doctrine of \u201clast clear chance,\u201d it must appear that plaintiff was negligent, but that such negligence was not the proximate cause of the accident, but that the proximate cause thereof was the negligence or want of due care on the part of the defendant. [21 N.M. at 347, 154 P. at 695.]\nEnglish fails to present any evidence that Lewis\u2019 negligence caused the accident.\nFurthermore, a careful reading of Thayer discloses that:\nWhere the negligence of the plaintiff continues up to the very moment of the injury and is contemporaneous and concurrent with the negligence of the defendant, and where the exercise of reasonable diligence before the injury would have warned the plaintiff of his danger and have enabled him to escape by his own efforts, there can be no recovery. . [Emphasis added.] [21 N.M. at 353, 154 P. at 697.]\n\u201cThe doctrine [of last clear chance] cannot be invoked where there is concurrent negligence such as where the injured party\u2019s negligence continues up to the very moment of injury.\u201d Bryan v. Phillips, 70 N.M. 1, 5, 369 P.2d 37, 39 (1962). English can make no reasonable argument that her negligence stopped at any time prior to the accident. From the record before us, we cannot assume that English was unconscious of the danger in time to avoid the injury. Her view of the area surrounding the intersection was clear and unobstructed. We can only conclude that English drove blindly with respect to traffic approaching the intersection from the south, or that she attempted to speed through Lewis\u2019 lane of traffic before he arrived at the intersection.\nThayer and Bryan make it clear that: [I]f the plaintiff could show that he was unconscious of the threatened danger in time to have avoided the injury, and that the defendant actually saw or knew of the danger to which the plaintiff was exposed, and also knew or should have known that the plaintiff was unconscious thereof, and the defendant failed to use due diligence to avoid the injury, the plaintiff would be entitled to recover. [21 N.M. at 353, 154 P. at 697-98.]\nThere are no facts in the record, nor reasonable inferences to be:1 drawn therefrom, that fall within the perimeter of that rule.\nThe overwhelming weight of authority denies the application of the \u201clast clear chance\u201d doctrine where the party to be charged is required to act instantaneously. Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028 (1960); McCoy v. Gossett, 79 N.M. 317, 442 P.2d 807 (Ct.App.1968).\nFrom the facts before us we are loathe to condone English\u2019s reckless driving that led to her tragic injury. In the hands of a reckless driver, the automobile is a dangerous instrumentality that often performs the dance of death. \u201cA plaintiff who is so reckless as to be in disregard of his [or her] own safety cannot be protected by the doctrine [of last clear chance].\u201d Handley v. Halladay, 92 N.M. 76, 582 P.2d 1289, 1290 (1978).\nThe district court correctly granted summary judgment on the issue of last clear chance. The only issue in the instant case to submit to the jury on the matter of liability of English is whether Lewis was contributively negligent in failing to see English after the left turn was made, and whether this negligence contributed to cause the accident.\nAffirmed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ. (concurring in result only).", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "David H. Pearlman, Albuquerque, for defendant-appellant.", "William K. Stratvert and Robert H. Clark, Keleher & McLeod, P. A., James C. Ritchie, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for plaintiff-appellee." ], "corrections": "", "head_matter": "588 P.2d 563\nJames R. LEWIS, Plaintiff-Appellee, v. Delora ENGLISH, Defendant-Appellant.\nNo. 3206.\nCourt of Appeals of New Mexico.\nDec. 12, 1978.\nDavid H. Pearlman, Albuquerque, for defendant-appellant.\nWilliam K. Stratvert and Robert H. Clark, Keleher & McLeod, P. A., James C. Ritchie, Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, for plaintiff-appellee." }, "file_name": "0362-01", "first_page_order": 398, "last_page_order": 401 }