(dissenting).
I dissent.
This is a common, little, rear end vehicle bump case where both parties were making a left-hand turn, driving at 10 m. p. h. Almost three years later, plaintiff sued defendant for $137,500.00. The jury believed that both parties were negligent and rendered a verdict for the defendant. Plaintiff appeals. This appeal should be affirmed. Jury verdicts and judgments below should not be reversed unless we discover prejudicial error that constitutes a miscarriage of justice.
A. Plaintiff was not entitled to a directed verdict on the issue of contributory negligence.
At the close of the evidence, plaintiff moved for a directed verdict as to the issue of contributory negligence. The motion was properly denied. Authority is unnecessary to establish that the moving party must rely on the evidence most favorable to the defendant, not the plaintiff. To support a directed verdict, it is common practice for appellants to recite the evidence most favorable to themselves. We have no method of preventing this skittish approach to the problem.
Immediately before the collision, plaintiff made a left-hand turn from Louisiana Boulevard, slowly proceeding east to the middle lane of Menaul Boulevard. She claims that “due to traffic blocking the innermost, or left hand lane, of Menaul Boulevard, [she] was forced to proceed into the middle lane of Menaul Boulevard proceeding east.” [Emphasis added.] The evidence discloses that the traffic was not stopped in the left-hand lane on Menaul, which was the proper lane for her to complete her turning movement. Traffic was stopped in the middle lane due to the presence of a garbage truck which had come to a stop in that lane. In the left-hand lane, a car was moving slowly and had its blinkers on to turn left. So plaintiff changed her mind and decided to enter the middle lane, then suddenly stopped and was bumped in the rear. At one point in her cross-examination, she was impeached by previous deposition testimony wherein she swore she had “no idea” why she pulled behind the garbage truck in the middle lane. She also testified that she “just went into the middle lane.” Plaintiff was not forced “into the middle lane.” Whether plaintiff’s conduct violated § 64-18-21(D), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2), entitled “Required position and method of turning at intersections”, and whether her sudden stop was a careless act, were questions of fact for the jury to determine.
Plaintiff was not entitled to a directed verdict.
B. Instructions on . contributory negligence were not erroneous.
Plaintiff claims error in giving Instructions No. 2 (stated as an affirmative defense); No. 8, which is U.J.I. 12.3; No. 12, which is U.J.I. 13.1; No. 15, which is U.J.I. 13.12; and No. 17, which is U.J.I. 11.1; that these instructions on contributory negligence were erroneous. I disagree.
Instructions No. 2, 8, 12 and 15 are correct. It is only necessary to discuss Instruction No. 17, which is U.J.I. 11.1.
(1) U.J.I. 11.1 was not erroneous.
Instruction No. 17, U.J.I. 11.1, is an instruction on violation of a statute. The problem that arises here is, should U.J.I. 11.2, which provides for excusable or justifiable violation thereof, be substituted for U.J.I. 11.1?
After stating the statutes involved, the instruction concluded as follows:
If you find from the evidence that any of the parties conducted themselves in violation of one or more of these statutes, you are instrsucted [sic] that such conduct constituted negligence as a matter of law.
The language omitted from U.J.I. 11.2 reads:
. unless you further find that such violation was excusable or justifiable.
To legally justify or excuse a violation the violator must sustain the burden of showing that he did that which might reasonably be expected of a person of ordinary prudence acting under similar circumstances who desired to comply with the law.
Plaintiff objected to Instruction No. 17, U.J.I. 11.1, and tendered an instruction pursuant to U.J.I. 11.2.
The only issue to determine is whether the omission of the provision “that such violation was excusable or justifiable” is prejudicial error. I believe not.
“Prejudicial error” has not been defined in New Mexico. It means “error which substantially affects the rights and obligations of appellant as to result in a miscarriage of justice, Kyne v. Eustice, 215 Cal.App.2d 627, 30 Cal.Rptr. 391 (1963), and the burden is on appellant to establish such prejudice.” Gutierrez v. Gutierrez, 20 Ariz.App. 388, 513 P.2d 677, 678 (1973). See Specter v. Specter, 85 N.M. 112, 509 P.2d 879 (1973). This rule applies to instructions given the jury. Jewell v. Seidenberg, 82 N.M. 120, 477 P.2d 296 (1970).
Plaintiff did not meet the burden of showing prejudicial error.
First, U.J.I. 11.2, Directions for Use, states:
This instruction should not be given unless the court holds as a matter of law that there is sufficient evidence of excuse or justification for the issue to go to the jury. Absent such evidence the “per se” rule applies and is covered by instruction UJI 11.1.
The court did not hold as a matter of law that there was sufficient evidence to submit the “excusable or justifiable” clause to the jury. Plaintiff was not entitled to U.J.I. 11.2.
Second, in the instant, case, three statutory violations were stated in the instruction: (1) § 64-18-17 (following too closely); (2) § 64-18-21(D) (method of turning at intersection); and (3) § 64-22-3.1 (careless driving), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2). Plaintiff’s objection was limited to § 64-18-21(D). No claim was made that the evidence supported the “excusable or justifiable” clause which made it applicable to the other two statutes, and plaintiff’s requested instruction did not limit the clause to § 64-18-21(D).
Third, “What is sauce for the goose is sauce for the gander.” The same principle applies in both cases; what is fitting for the defendant should be fitting for the plaintiff. Defendant was slowly following plaintiff in making the left-hand turn at the intersection. Both were charged with statutory violations submitted to .the jury. Plaintiff contends that if the jury believed plaintiff may have committed a “technical” violation of the statute, there was ample justification for her driving in the wrong lane. Defendant would also have the benefit which plaintiff claims. Plaintiff was no more harmed, if at all, than the defendant. It did not constitute prejudicial error.
The foregoing instructions were properly given by the court.
C. Denial of plaintiff’s requested instruction on violation of speed regulations was not prejudicial error.
Plaintiff tendered an instruction on violation of four statutes by defendant, one of which was § 64-18-1.1(C), pertaining to speed regulations. At the time of the accident, § 64-18-1.1(A) set speed limits from 15 m. p. h. in school zones to 70 m. p. h. on all highways. Plaintiff and defendant were travelling at the rate of 10 m. p. h. Neither party was exceeding the speed limit. This does not close the inquiry.
Subsection (C) provides:
In every event, speed shall be so controlled as may be necessary:
(1) To avoid colliding with any vehicle . on . the highway; and
(2) To comply with . . . the duty of all persons to use due care.
This subsection means that vehicles may only be operated at such speed as shall be consistent at all times with safety and the proper use of the roads to avoid a collision. Langenegger v. McNally, 50 N.M. 96, 171 P.2d 316 (1946). If the trial court had considered speed as an essential ingredient of negligence, it would have included subsection (C) in Instruction No. 17, supra.
In Lopez v. Maes, 81 N.M. 693, 472 P.2d 658 (Ct.App.1970), the same requested instruction was denied. Plaintiff in the instant case and in Lopez relied on Langenegger, supra. Lopez held that the language in Langenegger did not compel the giving of the instruction. The Court said:
There is no evidence that either defendant was violating the maximum speed limit of 45 miles per hour, and there is no evidence that either was driving at a speed inconsistent with the exercise of due care and the proper use of the highway. Excessive speed under the prevailing conditions is not inferable from the mere fact that the accident happened. [81 N.M. at 700, 472 P.2d at 665]
This language is applicable to the instant case. To have given U.J.I. 11.2 would have been reversible error. Embrey v. Galentin, 76 N.M. 719, 418 P.2d 62 (1966).
Plaintiff’s requested instruction was properly denied.
Other claimed errors relating to damages are irrelevant.