FRANCIS V. JOHNSON, 1970-NMCA-079, 81
N.M. 648, 471 P.2d 682 (Ct. App. 1970)
SAM FRANCIS, Plaintiff-Appellee,
vs.
STEPHEN DAVID JOHNSON and HENSLEY S. JOHNSON, Defendants
and Third Party Plaintiffs-Appellants, v. ROBERT F.
HARRISON, Third Party Defendant-Appellee
COURT OF APPEALS OF NEW MEXICO
1970-NMCA-079, 81 N.M. 648, 471 P.2d 682
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, LARRAZOLO, Judge
QUINCY D. ADAMS, Esq., Adams & Foley,
Albuquerque, New Mexico, Attorneys for Appellants.
E. DOUGLAS LATIMER, Esq., McAtee,
Marchiondo & Michael, Albuquerque, New Mexico, Attorneys for Appellee.
SPIESS, Chief Judge, wrote the opinion.
LaFel E. Oman, J., William R. Hendley, J.
{*650} SPIESS, Chief
Judge, Court of Appeals.
{1} This is an automobile
accident case. Anthony Francis (Anthony), minor son of plaintiff-appellee, Sam
Francis (Sam), was injured while a passenger in an automobile driven by
defendant-appellant, Stephen David Johnson (Stephen), minor son of
defendant-appellant, Hensley S. Johnson (Hensley). The car involved and being
driven by Stephen was owned by his father, Hensley, and maintained for the use
of his family.
{2} It appears that Stephen,
while driving the automobile upon a street in the City of Albuquerque,
participated, or undertook to participate in a "drag" race with
Robert F. Harrison (Robert). As a result of this activity and while driving at
a high rate of speed, the vehicle operated by Stephen collided with a truck
resulting in the injuries to Anthony.
{3} The appeal is from a
judgment upon a jury verdict awarding damages to Sam, individually, for medical
expenses resulting from the injury to his son, Anthony, and further damages to
Sam as next friend of Anthony on account of injuries received by him. The
judgment, pursuant to the verdict, likewise effected a dismissal of the third
party action against Robert.
{4} Issues presented on
appeal concern: (1) the denial of a motion for a directed verdict and the
denial of a motion for judgment notwithstanding the verdict; (2) a ruling
relating to cross-examination; (3) the denial of a motion for a new trial based
upon excessiveness of the verdict with respect to Anthony's injuries, and (4)
the court's refusal of certain requested instructions.
{5} Defendants Stephen and
Hensley first urge that the evidence establishes assumption of risk as a matter
of law upon the part of Anthony and for that reason the trial court erred in not
sustaining their motion for a directed verdict and in denying their motion for
judgment notwithstanding the verdict.
{6} Assumption of risk is a
defense to a claim by a passenger against the driver of an automobile. Hughes
v. Walker,
78 N.M. 63,
428 P.2d 37 (1967). For the doctrine to apply, it must
be shown (1) that a dangerous situation existed, (2) that the plaintiff knew of
such dangerous situation, and (3) that the plaintiff voluntarily exposed
himself to the danger and was injured thereby. See Tapia v. Panhandle Steel
Erectors Company,
78 N.M. 86,
428 P.2d 625 (1967).
{7} It is a well-settled
principle of law that unless the evidence is so clear and undisputed that
reasonable men can draw but one conclusion, the defense of assumption of risk
is a factual question to be resolved by the trier of facts. Padilla v. Winsor,
67 N.M. 267,
354 P.2d 740 (1960).
{8} In passing upon
defendant's motion for a directed verdict the court must view plaintiff's
evidence together with all reasonable inferences that could reasonably be drawn
therefrom in a light most favorable to plaintiff disregarding all evidence to
the contrary. Tabet v. Sprouse-Reitz Co.,
75 N.M. 645,
409 P.2d 497 (1966).
{9} Upon motion for judgment
notwithstanding the verdict, the court is governed by the same rules which
apply to a motion for directed verdict. Garcia v. Barber's Super Markets, Inc.,
81 N.M. 92,
463 P.2d 516 (Ct. App. 1969).
{10} Applying these
principles to the facts disclosed by this record we conclude that the trial
court properly refused to take the case from the jury at the conclusion of
plaintiff's evidence and properly denied the motion for judgment
notwithstanding the verdict.
{11} At the time of the
accident involved Anthony was sixteen years of age and had known Stephen for
some eight years. On the day of the accident Stephen was driving his father's
car for the purpose of making delivery of a radio for repair to a particular
place and returning a musical instrument to its owner. He invited Anthony to
accompany him. After delivering the radio the
{*651}
boys were proceeding along Palomas, a street in the city of Albuquerque, to
deliver the musical instrument. Upon arriving at a stop sign at the
intersection of Palomas and Ross they encountered a car being driven by Robert,
which was stopped at the intersection. Stephen was driving northbound in his
proper lane of traffic before reaching the intersection, but as he approached
the stop sign he swerved over on the wrong or left side of the street and
stopped next to the car being driven by Robert. Stephen asked Anthony to roll
down the window and began a conversation with Robert. The conversation
concerned drag racing. As stated, the race, or attempt to race ensued resulting
in the injuries to Anthony.
{12} Defendants argue that
the evidence establishes as a matter of law that (1) Anthony was aware of the
dangers incident to racing upon a public street, (2) he participated in the
start of the race by lowering the car window so that Stephen and Robert could
talk to each other, and (3) Anthony knew that Stephen intended to race and had
sufficient time, five seconds, to withdraw from the car. It is undisputed that
Anthony was aware of the dangers incident to racing upon a public street. It is
further undisputed that Anthony did lower the car window at Stephen's request
so as to permit Stephen to converse with Robert. Anthony, however, testified
that he did not know what Stephen planned to discuss with Robert when asked to
roll down the window. By lowering the car window under these circumstances
Anthony could not have knowingly participated in the start of the race, nor
accepted the risk. See Hughes v. Walker, supra.
{13} Contrary to defendant's
contention the evidence does not conclusively establish that Anthony had five
seconds of time within which he could leave or withdraw from the car after he
became aware that Stephen intended to race.
{14} Anthony testified that
while Stephen and Robert were talking about drag racing he did not believe they
would race because of the very narrow and crowded streets, and that they revved
their engines for five seconds or less and took off. This testimony presented
as issue as to whether Anthony could have opened the door and withdrawn from
the car before it began to move. The defense of assumption of risk was properly
submitted to the jury and after the issue had been resolved against defendant
the trial court correctly declined to overturn the verdict.
{15} On cross-examination
defendants' counsel asked Anthony the following question:
"Q You know how long it takes to open the door and get
out? Five seconds would be plenty of time, wouldn't it?"
Objection was interposed by plaintiff's counsel in the
following language:
"If it please the Court, this is argumentative."
The Court then stated:
"I think that is argumentative. * * * It is up to the
Jury. The Jury knows what five seconds is and what he said and what the
question was."
{16} The court's statement
was treated as sustaining the objection to the question. Defendants contend
that they should have been permitted to so interrogate Anthony upon
cross-examination and the ruling precluding the question was prejudicial. We
disagree. The question was purely argumentative calling for the witness'
conclusion as to whether five seconds was adequate time within which to leave
the vehicle under the circumstances.
{17} The scope and extent of
cross-examination rests largely in the sound discretion of the trial court.
State v. Sanchez,
79 N.M. 701,
448 P.2d 807 (Ct. App. 1968). An abuse of
judicial discretion is not shown. Furthermore, the facts were before the jury
from which it could reach its own conclusion relating to Anthony's opportunity to
leave the car.
{18} Defendants next contend
that the award of damages as to Anthony's injuries was
{*652}
excessive. They urge, in substance, that the trial court erred in not
granting a new trial on the ground that the award was excessive. It is argued
under the facts that "the jury was affected either by bias or prejudice or
else misunderstood the court's instructions" in awarding $50,000.00 on
account of Anthony's injuries.
{19} The controlling law
relating to the review of an award of damages upon a claim of excessiveness has
been stated in numerous cases. Michael v. West,
76 N.M. 118,
412 P.2d 549
(1966); Nash v. Higgins,
75 N.M. 206,
402 P.2d 945 (1965); Hanberry v.
Fitzgerald,
72 N.M. 383,
384 P.2d 256 (1963); Massey v. Beacon Supply Company,
70 N.M. 149,
371 P.2d 798 (1962); Vivian v. Atchison, Topeka and Santa Fe
Railway Company,
69 N.M. 6,
363 P.2d 620 (1961); Montgomery v. Vigil,
65 N.M.
107,
332 P.2d 1023 (1958); Schrib v. Seidenberg,
80 N.M. 573,
458 P.2d 825 (Ct.
App. 1969); Sweitzer v. Sanchez,
80 N.M. 408,
456 P.2d 882 (Ct. App. 1969).
{20} In
Massey the
court stated:
"* * * in determining whether the award is excessive we
will not weigh the evidence but only look to see whether the evidence, viewed
in the light most favorable to appellee, affords substantial support for the
award. * * * If it does, and there is no specific finding of an indication of
passion, prejudice, partiality, sympathy, undue influence or a mistaken measure
of damages on the part of the fact-finder, then the award will not be disturbed
on appeal."
{21} The record discloses
that Anthony suffered an "ugly laceration on his cheek." Upon opening
Anthony's abdomen to determine the extent of internal injuries the doctor found
plural lacerations of the spleen and, therefore, performed a spleenectomy. In
addition, the doctor discovered hematoma behind the abdominal cavity in the
supporting structures and concluded that there was damage and lacerations of
the left kidney. Further, as the consequence of internal hemorrhaging, Anthony
had to receive four transfusions and subsequently developed an infection in the
wound. After the operation Anthony suffered from a collection of fluid on the
left side of his chest and an inflammation in that area causing a change to
occur to the diaphragm and lungs. During the three weeks that Anthony was in
the hospital he suffered a continuous fever up to 102 degrees. He also suffered
a brain concussion. One of the doctors testified that the left kidney was
nonfunctioning; that it would never function, and that this condition was
permanent.
{22} It was further shown
that Anthony cannot engage in sports which may result in physical contact
because of potential injury to the only remaining kidney. In our view, the
evidence affords substantial support for the award and will not, therefore, be
disturbed. Cases from other jurisdictions have been brought to our attention by
defendants. These cases have received consideration. They are, however, not
controlling here. See Sweitzer v. Sanchez, supra.
{23} Defendants urge error in
the denial of their requested instruction 19. This instruction proposed that
the jury be charged as follows:
"In the event you should return a verdict in favor of
plaintiffs, you are instructed that, in fixing damages, you should not
speculate upon the possibility that plaintiff Anthony Francis' remaining
undamaged kidney may become injured or diseased."
{24} Defendants call
attention to the fact that the court did instruct the jury that they should not
consider possible future medical and hospital expenses arising from injury or
disease to the undamaged kidney because such evidence was too remote and
speculative. Defendants say:
"It is difficult to understand why the court would
instruct the jury that they should not consider possible future medical expense
arising from injury or disease to the undamaged kidney because such evidence
was 'too remote and speculative,' but permit them to consider the {*653} same evidence in assessing general damages."
{25} The substance of the
argument as we understand it is that under the instruction given, possible
future medical and hospital expenses were expressly excluded as a basis for
recovery, but the possibility of injury or disease to the undamaged kidney in
itself was not excluded as an element of damage. Hence, such possible injury or
disease could be considered in assessing general damages.
{26} Damages which might
occur by injury or disease to the remaining undamaged kidney were treated as
being within a speculative area and not a proper basis upon which to found an
award.
{27} The trial court gave the
following instruction.
"No. 15 - If you should decide in favor of the plaintiff
on the question of liability, you must then fix the amount of money which will
reasonably and fairly compensate him for any of the following elements of
damages proved by the plaintiff to have resulted from the negligence of the
defendant:
1. The nature, extent, and duration of the injury, including
disfigurement."
"3. The present cash value of the reasonable expenses of
medical care, treatment and services reasonably certain to be received in the
future. Whether any of these elements of damages have been proved by the
evidence is for you to determine. Your verdict must be based upon proof and not
upon speculation, guess, or conjecture. * * *"
{28} This instruction is in
conformity with U.J.I. 14.2 and instructs the jury that the verdict must be
based upon proof and not upon speculation, guess, or conjecture. The
proposition presented by defendants' requested instruction No. 19 was
adequately covered the general instruction No. 15, which, as stated, was given
by the court. Hence, the denial of the requested instruction was not error.
Tapia v. Panhandle Steel Erectors Company, supra; Ortega v. Texas- New Mexico
Railway Company,
70 N.M. 58,
370 P.2d 201 (1962); Chapin v. Rogers,
80 N.M.
684,
459 P.2d 846 (Ct. App. 1969); McBee v. Atchison, Topeka and Santa Fe
Railway Company,
80 N.M. 468,
457 P.2d 987 (Ct. App. 1969).
{29} Defendants' final
objection is to the refusal of the trial court to charge the jury as requested
by them relating to the liability of the third party defendant (Robert). The
requested instruction is in the following language:
"No. 16 - The evidence is undisputed that third party
defendant, Robert Harrison, participated in the race which resulted in injury
to plaintiff, Anthony Francis. Therefore, if you should return a verdict
against the defendants you must, at the same time, return a verdict in favor of
defendants and against third party defendant for one half of any amount awarded
plaintiffs."
{30} This charge appears to
be based upon the assumption that third party defendants' liability was
established as a matter of law. The record, in our opinion, does not support
this contention. As we read the record an issue of fact was present as to third
party defendants' liability. The requested instruction was properly refused by
the trial court.
{31} The judgment of the
trial court should be affirmed.
LaFel E. Oman, J., William R. Hendley, J.