(Specially Concurring).
I concur in the result only on the basis of parts B and C of the opinion. Part B is dispositive, but equal weight should be given to the defenses of contributory negligence and last clear chance.
Contributory negligence: There is uncontroverted testimony to show that English was exceeding the speed limit and passing other cars in a reckless fashion, and that she turned left across four lanes of traffic from the right (outside) lane without keeping a proper lookout or yielding the right-of-way. She was therefore contributorially negligent as a matter of law. Summary judgment in a negligence case is proper when an affirmative defense such as contributory negligence is proved as a matter of law:
“Since certain affirmative defenses are often susceptible of categorical proof, a summary adjudication of a claim based on negligence may appropriately be rendered for the defendant when such is the case and the defense is legally sufficient . . . .” 6 Moore’s Federal Practice (2d ed. 1976) ¶ 56.17[42],
Even if an issue of material fact remains as to the negligence of defendant Lewis, therefore, summary judgment is proper because the contributory negligence of English bars the plaintiffs from recovery. See Stoes Brothers, Inc. v. Freudenthal, 81 N.M. 61, 463 P.2d 37 (Ct.App.1969); Moss v. Acuff, 57 N.M. 572, 260 P.2d 1108 (1953).
When a plaintiff has been contributorially negligent, he may not recover unless defendant had the last clear chance to avoid the accident. Montoya v. Williamson, 79 N.M. 566, 446 P.2d 214 (1968). The doctrine of last clear chance has four elements:
(a) That the plaintiff has been negligent;
(b) That as a result of his negligence, he is in a position of peril, from which he cannot escape by the exercise of ordinary care;
(c) That the defendant knows, or should have known, of plaintiff’s peril; and
(d) That defendant then had a clear chance, by the exercise of ordinary care, to avoid the injury, and that he failed to do so.
Rice v. Gideon, 86 N.M. 560, 525 P.2d 920 (Ct.App.1974); cert. denied, 87 N.M. 299, 532 P.2d 888 (1975); Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028 (1960). The fourth element was not proved here and the doctrine of last clear chance does not apply as a matter of law:
(1)Just before English made a left turn across the four-lane roadway, she was traveling in the right southbound lane and a van was next to her in the left (inner) southbound lane.
(2) Lewis was traveling in the right northbound lane at 50 miles per hour (the speed limit).
(3) Lewis was at or very near the intersection when he saw English’s car turning in front of him.
(4) Lewis braked immediately on seeing English’s car and attempted to pull to the right.
(5) Lewis traveled approximately 25 to 35 feet from the time of applying his brakes to the time of the impact.
These facts are sufficient to establish that Lewis had no chance to avoid the injury by the exercise of ordinary care. Plaintiffs’ attempt to establish an issue of fact through the affidavit of an expert witness fails, both because the affidavit opinion evidence in not competent evidence and because the affidavit, even if admissible, does not show that Lewis had time for appreciation, thought, and effective action. Compare the facts above with those in McCoy v. Gossett, 79 N.M. 317, 442 P.2d 807 (Ct.App.1968), where this court found that the fourth element of last clear chance was not proved even though the defendant in McCoy was going slower than Lewis and saw the plaintiff’s car when it was farther away from him than English’s ear was when Lewis first saw it turning. For a summary judgment case involving issues of contributory negligence and last clear chance, see Horne v. Seaboard Coast Line Railroad Company, 301 F.Supp. 561 (D.S.C.1969).
In the absence of material issues of fact as to contributory negligence and last clear chance, summary judgment was properly granted.