Rheinboldt v. Fuston

ON MOTION FOR REHEARING [5] It appears that we erred in disposing of appellant's objections to the instructions given, upon the theory that exceptions had not been taken. So we are now put to a consideration of the merits of the contentions. The most serious is directed to instruction 9 which, in substance, charged that excitement and confusion, resulting from discovering one's self in a position of peril, by the negligence of another, may excuse acts which otherwise would constitute contributory negligence. It is claimed that a false issue was thus submitted because appellee had himself testified that he had never seen appellant's car, and did not know what hit him. On the part of appellant, however, evidence was adduced from which the jury might have concluded that appellee was in fact laboring under the excitement and confusion of imminent peril. We think, therefore, that the instruction was proper as a guide to the jury in case it should thus view the facts.

[6] Instructions 6, 8, and 9 state abstract propositions of law without making specific application, as might well have been done. But, reading them in connection with other instructions given, we do not think the jury could have supposed that the court was advancing any opinion upon controverted facts, or that appellant could have been prejudiced.

[7] If true, as appellant contends, that the whole case shows that appellee was guilty of contributory negligence, as matter of law, appellant is precluded from raising the point here. Instead of presenting it to the trial judge, by motion for directed verdict at the close of the entire case, he chose to submit it to the jury through special interrogatories. Having thus admitted that men's minds might reasonably differ concerning these questions, he is not now in a position to urge that they could be answered only in one way. We cannot consider a question of law upon which a ruling was not invoked in the trial court. Laws 1917, c. 43, § 37 (repealed by Laws 1927, c. 93, and replaced by N.M. App. Proc. Rule 12, § 1); State v. Garcia,19 N.M. 414, 143 P. 1012; Bezemek v. Balduini, 28 N.M. 124,207 P. 330.

We adhere, therefore, to the affirmance of the judgment and overrule the motion for rehearing.

BICKLEY, C.J., and PARKER, J., concur.

CATRON and SIMMS, JJ., did not participate.