Plaintiff, Carolyn Hayes, a minor,' lias appealed from a judgment denying recovery for personal injuries following a jury verdict finding the issues in defendant’s favor.
Very briefly, the facts are that Caro(lyn, an eight-year-old school child, was bejng returned home from school on a bus, owned by defendants Nutter and operated by Hagemeier. The bus stopped for a red light at the corner of Twelfth and Candelaria streets, in Albuquerque, New Mexico, and proceeded across the intersection with the green traffic light. There, the bus stopped immediately adjacent to the right hand curb and sidewalk, with its rear some five feet beyond the pedestrian crosswalk, to discharge school children. Some twenty or twenty-five children, including Carolyn, left the bus. All of the children, except Carolyn, followed the sidewalk to the pedestrian crossing, but Carolyn crossed in front of the bus and was struck and injured by a passing vehicle.
The action was by Carolyn, a minor, by her mother and next friend, against the owners and operator of the bus. During the trial, Betty Evans was allowed an oral trial amendment claiming medical expenses paid by her for her daughter. Following the jury verdict finding the issues in defendants’ favor, plaintiffs moved for a new trial which was denied by the court. This appeal followed.
A question is presented at the outset as to whether Betty Evans perfected an appeal. Both the motion and order granting appeal were in the singular. The notice only named Carolyn as the appellee. This court has a duty to determine whether it has jurisdiction of an appeal. As to cases filed prior to March 15, 1961, a timely allowance of an appeal is necessary to confer jurisdiction upon the Supreme Court of an appeal from the judgment of a district court. Chavez v. Village of Cimarron, 65 N.M. 141, 333 P.2d 882; Public Service Company of New Mexico v. First Judicial District Court, 65 N.M. 185, 334 P.2d 713; Breithaupt v. State, 57 N.M. 46, 253 P.2d 585. The record fails to disclose a timely appeal by Betty Evans.
It is conceded that traffic at the intersection of Twelfth and Candelaria streets is controlled by traffic lights and that the school bus did not operate its special warning devices when it discharged the school children at that intersection.
Section 64-18-48, N.M.S.A.1953, reads:
“A. When stopping to receive or discharge school children on a roadway, the operator of a school bus shall drive his vehicle to the extreme right side of the paved or traveled portion. Before discharging any passengers the school bus shall be brought to a complete STOP, and the special warning devices provided in section 64-18-47 New Mexico Statutes Annotated, 1953 Compilation shall be in operation the full time the bus is stationary.
“B. Whenever a school bus stops to discharge school children who must cross the roadway at a point not under the control of a traffic officer or a clearly visible electrical or mechanical traffic signal, the school children shall cross the roadway in front of the standing school bus. The bus shall not be started until all school children undertaking to do so have safely crossed the roadway.
“C. Any operator of a school bus failing to comply with the provisions of this section shall be punished as provided in section 64-22-4 New Mexico Statutes Annotated 1953 Compilation, and shall have his driver’s license suspended for a period not exceeding three [3] months.”
The principal question raised by objections to testimony and refusal to give requested instructions is whether violation of that portion of the statute, which requires operation of the special warning devices while discharging school children, constitutes negligence per se and makes defendants liable for Carolyn’s injuries.
It has been held in New Mexico that violation of a statute constitutes negligence per se and when, as a proximate result thereof, a person is injured, damages may be recovered if the statutory provision violated was for the benefit of the person injured. Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370; Zamora v. J. Korber & Co., Inc, 59 N.M. 33, 278 P.2d 569. First, we examine the statute to determine whether the provision of the statute violated was for the benefit of plaintiff under the circumstances at the time of the accident.
A guide to the proper construction of statutes is provided in Reese v. Dempsey, 48 N.M. 417, 152 P.2d 157, where it was said:
" * * * In the construction of a statute, in order to determine the true intention of the legislature, the particular clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts. State [ex rel. People’s Bank & Trust Co. of Las Vegas] v. York, 24 N.M. 643, 175 P. 796. All parts of an act relating to the same subject should be considered together, and not each by itself. Sakariason v. Mechem, 20 N.M. 307, 149 P. 352. All legislation is to be construed in connection with the general body of the law. Dorman v. Sargent, 20 N.M. 413, 150 P. 1021. * *”
The evils which the legislature intended to correct and the purpose of the legislation must be considered in construing a statute. It cannot be assumed that the legislature would do a futile thing. Davies Warehouse Co. v. Bowles, 321 U.S. 144, 64 S.Ct. 474, 88 L.Ed. 635; Bergner v. State, 144 Conn. 282, 130 A.2d 293; Clark v. Clark, 165 Ohio St. 457, 136 N.E.2d 52; 2 Sutherland, Statutory Construction (3rd. Ed.), § 4510.
The statute being considered was a part of § 109.7, Ch. 139, Laws 1953, a code regulating traffic on the highways. Applying'the'principles of statutory construction, all other parts of the same traffic code which are in pari materia must be examined. Section 64-18-46, N.M.S.A.1953, requires motof vehicles to stop at least ten feet before féaching a' school bus, stopped to received' or "■ discharge school children, and while' £ts; signals áre in operation, and such vehicles tnay not'proceed so long as such signals áre being operated.
The purpose of these statutes, and of the requir.ernept that school buses be equipped with and operate warning signals when receiving, or discharging school children becomes apparent when all the applicable statutes are read and considered together. It becomes immediately apparent that the legislature recognized that school buses are usually required to discharge school children at places where there are no traffic controls. It seems clear that, recognizing this fact, the legislature, in order that there always be traffic controls for the safety of school children, provided that the school bus itself 'should control the traffic where no mechanical or electrical traffic controls are provided.' ■ Subsection B of § 64-18-48, supra, 'recognizes that control of traffic by the school bus is unnecessary, at least where traffic is under control of a traffic officer or mechanical or electrical traffic signals.
As a part of the traffic control by a school büá; it is required that children cross in ffdnt o’f the bus when they are discharged at a place not under other traffic control. Under such circumstances, the bus is required to operate its signals and to remain stationary until all children have safely crossed the road. That, together with the prohibition against other vehicles passing such a bus provides traffic control for the safety of the children just as traffic control lights do where installed. The language is :
“Whenever a school bus stops to discharge school children * * * at a point not under the control of a traffic officer or a clearly visible electrical or mechanical traffic signal, the school children shall cross the roadway in front of the standing school bus. * *”
We think it is implicit in the statute that discharged school children shall remain off the traveled portion of the roadway and proceed off the roadway to the pedestrian crosswalk when they are discharged from the bus at a traffic controlled intersection. That purpose of the legislature becomes manifest when it requires that “[t]he bus shall not be started until all school children undertaking to do so have safely crossed the roadway,” only when children are discharged where no traffic controls are provided. A bus discharging children at a traffic controlled intersection is not required to remain stationary until all children have safely crossed the street under protection of its traffic signals, but, under such circumstances, may start as soon as the children have alighted from the bus.. The statute. therefore, does not contemplate that the bus signals provide the protection for such discharged children in crossing the roadway at traffic controlled intersections.
Section 64-18-64, N.M.S.A. 1953, requires the director of school transportation to adopt and enforce regulations, not inconsistent with the act, to govern operation of all school buses and provides that such regulations shall be a part of every school bus contract and that the contract of any bus owner may be cancelled for failure to obey all such regulations.
Much of the testimony objected to had to do with whether the state director of school transportation, pursuant to § 64-18-64, adopted regulations directing school bus operators not to use their signal devices when discharging school children at traffic controlled intersections and to instructions given to school bus drivers to that effect.
Plaintiffs assert that even if such regulations were made, directing non-use of bus signals at traffic controlled intersections, they would nevertheless be contrary to the requirement of § 64 — 18-48, supra, and therefore void and of no effect. Defendants, on the contrary, urge that compliance with such directive of the department of education, its director or school bus safety officer, and instructions by the state police, excused non-compliance with the statute and relieved them of liability even though there was violation of a statute. This squarely presents the question whether failure to comply with statutory requirement^ may be excused.
On the question of when violation of a statute imposing a criminal penalty is considered negligence per se, Prosser, Law of Torts, § 34, page 161, has this to say:
“Where the statute is interpreted as intended to protect the class of persons in which the plaintiff is included, against the risk of the type of harm which has in fact occurred, the weight of authority holds that an unexcused ' ‘ violation is negligence in itself, and'1 that the court must so direct the jury. The standard of conduct has been fixed by the legislature, and ‘jurors have no';: dispensing power by which to ielax ‘it,’ except in so far as the court may recognize the possibility of a valid excusé for disobedience of the law. * * '*•>>
See Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814.
Some courts hold that statutory violations create a presumption of negligence, which may be rebutted by a showing of an adequate excuse, but call for a binding instruction in the absence of evidence. Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897; 898; Jones v. Co-operative Ass’n of America, 109 Me. 448, 84 A. 985, L.R.A.1915E, 745; Guinan v. Famous Players-Lasky Corporation, 267 Mass. 501, 167 N.E. 235. A very .cpnsiderable'minority have. held, that a violation is only evidence of negligence which the jury may accept or reject as it sees fit. Prosser, Law of Torts, p. 161. New Mexico has held violation of a statute to be negligence per se, but has said that damages may be recovered for such violation only if, as a proximate result thereof, a person is injured and if the statute violated was for the benefit of the person injured. Bouldin v. Sategna, supra; Zamora v. J. Korber & Co., Inc., supra.
The statute claimed to have been violated in this case imposes only a criminal penalty but has provided no civil recovery. Regarding such statutes, 2 Harper & James, Law of Torts, § 17.6, p. 1010, has this to say:
“* * * Where the legislature has provided no civil recovery, however, the court is entering upon judicial lawmaking in any event by adopting standards of the criminal law in civil litigation. It is mechanical and doctrinaire, therefore, for courts to do this without exercising their own judgment as to whether the transplanted standard is appropriate to the new purpose. * * ”
The author, 2 Harper & James, § 17.6, points out that the majority of jurisdictions have adopted, at least in form, the negligence per se rule. But, it is said that the tide has swung the other way. Continuing, it is said:
“ * * * This newer trend has not been marked by a widespread express rejection of the negligence per se rule in states which formerly adhered to it, although this has been the result in two important jurisdictions. For the most part it has been accomplished by the increasing acceptance of one or another of the avenues of escape treated in this section * * *.”
Excuse from liability for violation of a statute was recognized in Jackson v. Southwestern Public Service Co., 66 N.M. 458, 349 P.2d 1029, in which the test as stated in Alarid v. Vanier, supra, was adopted:
“In our opinion the correct test is whether the person who has violated a statute has sustained the burden of showing that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.”
In the instant case, the bus drivers were not advised to disregard or disobey the statutory requirement as in Jackson. It is conceded, for the sake of the argument, that the department of education did issue its regulation directing non-use of bus signals at traffic controlled intersections. Instructions to bus drivers, at schools for that purpose, by the director of school bus safety and by state police officers was not in the nature of advice to disregard or disobey the requirement for use of signals at all stops, but rather was that in following the directive not to operate the signals at' traffic controlled intersections there was compliance with the statute. We think that, under the facts of this case, it was for the jury to determine, under proper instructions by the court, whether defendants sustained the burden of showing that they did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law. The jury was instructed on excuse from violation of the statute and that instruction is not complained of on this appeal. We conclude that the objections to the testimony, because it sought to excuse the defendants, are without merit.
Likewise, the contention that unqualified witnesses were permitted to express an opinion is determined to be without merit. Whether a witness is qualified to testify as an expert rests largely within the trial court’s discretion in the first instance, State v. Deming, 66 N.M. 175, 344 P.2d 481, 77 A.L.R.2d 964, and that determination will not be disturbed on appeal unless the ruling was manifestly wrong or the court has applied wrong legal standards in the determination. Landers v. A. T. & S. F. Ry., 68 N.M. 130, 359 P.2d 522.
Plaintiff, for the first time on appeal, asserts as error the admission of certain testimony of a state police officer expressing his opinion as to an interpretation of a New Mexico statute. While there were general objections to a line of examination of various witnesses, none appear to have been made specifically on the ground of its inadmissibility because it interpreted a statute. Complaint cannot be made for the first time on appeal where no motion is made to strike the testimony, even though the testimony would have been rejected if objection and motion to strike had been made at the trial. Hancock v. Beasley, 14 N.M. 239, 91 P. 735; McKenzie v. King, 14 N.M. 375, 93 P. 703; Bishop v. Mace, 25 N.M. 411, 184 P. 215; Frei v. Brownlee, 56 N.M. 677, 248 P.2d 671.
Other questions presented or argued have either been disposed of by what has been said, found to be without merit, or are unnecessary to the decision.
The judgment appealed from should be affirmed.
It is so ordered.
COMPTON, C. J., and CHAVEZ, J., concur.