(dissenting).
I agree with the majority concerning the law applicable in ruling on a motion for summary judgment. I also agree that in the light of this law there are factual issues as to whether the defendants here involved violated § 64-18-49(a), N.M.S.A. 1953 (Repl. 9, pt. 2). The essential portion of this section of our statutes is quoted in the majority opinion.
I also agree “foreseeability” is one of the tests ordinarily to be considered and applied in determining the factual question of negligence, and that the violation of a statutory rule of the road constitutes negligence per se. However, I disagree with the majority’s disposition of the “foreseeability” issue in this case, insofar as it relates to the questions of “proximate cause” and “independent intervening cause,” and I disagree with the majority holding that there is a question of fact as to whether the negligence of these defendants was a proximate cause of the second accident and plaintiff’s resulting injuries,
I agree with the following statements of the majority concerning the law of “proximate cause” and “independent intervening cause”:
“A partial definition of proximate cause is * * that which * * * produces the injury, and without which the injury would not have occurred. * * *’ Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507 (1955). For an intervening act to he an independent cause, Thompson v. Anderman, supra, states: '* * * Such intervening cause must be sufficient in and of itself to break the natural sequence of the first negligence * * *.’
“If plaintiff’s injuries would not have occurred except for the alleged negligence of the defendants, their negligence is a proximate cause of the injuries. If, however, the second accident broke the natural sequence of defendants’ asserted negligence, if the second accident is the one without which the injuries would not have occurred, the second accident was the proximate cause of plaintiff’s injuries. If the second accident did break the natural sequence of events resulting from the asserted negligence of defendants, the second accident would be an independent intervening cause. If, however, plaintiff’s injuries ‘would not have occurred except for the original act’ of the defendants, the second accident was not an independent intervening cause. * * * »
I disagree with the majority statement that the opinion of the Illinois Court in Anderson v. Jones, 66 Ill.App.2d 407, 213 N.E.2d 627 (1966) “ * * * does not state New Mexico law, and is not applicable,” and with the majority conclusion that under New Mexico law, as above quoted from the majority opinion, reasonable minds could differ on the question of whether the negligence of defendants could have proximately concurred in causing the second accident.
I have already stated I agree the evidence here is sufficient on the issue of the defendants’ negligence to avoid summary judgment. As I understand the opinion of the Illinois court in Anderson v. Jones, supra, the negligence of Jones was conceded. The concern of the Illinois court with “foreseeability” was whether the second accident, precipitated by the “intervening cause” — the conduct of Zehr in running into the rear of plaintiff’s vehicle — could have been reasonably foreseen as a result of the original act of negligence — the conduct of Jones in causing the first collision. If it could have been so reasonably foreseen, then the negligence of Zehr was not an “independent intervening cause,” which could have broken the chain of causation between the negligence of Jones and the injury to plaintiff. This is consistent with the law of New Mexico. U.J.I. 13.-15; Thompson v. Anderman, supra, cited in the above quotation from the majority opinion. See also, Annot., 58 A.L.R.2d 270 (1958), and particularly § 2 [b] and cases cited therein as showing that “foreseeability” is a test to be applied in determining whether another’s negligence constitutes an “intervening cause” or merely a “concurring cause.”
The majority “* * * agree that Anderson v. Jones, supra, is factually similar to our case.” However, they distinguish the result reached therein from their result in the present case on the basis that “* * * the holding as to foreseeability * * * ” by the Illinois court * * * does not state New Mexico law, and is not applicable.” As above stated, I disagree with this and can see no reason to arrive at a result directly opposite that reached by the Illinois court in a concededly similar factual situation now before us.
The majority, however, also seek to support their result by asserting that a factual issue as to foreseeability is presented by the statement of the State Police Officer that “* * * there’s a lot of them stops on the roadway, and we have a lot of accidents the same way.”
In my opinion this statement by the State Police Officer cannot reasonably be said to raise a question on the issue of proximate causation under the undisputed facts before us. It may possibly, as the majority suggest, raise a question as to the negligence of defendants in stopping on the highway, but this is not the issue in the case as I see it and as I have above stated.
An examination of the evidence, in the light of the above quoted law from the majority opinion as to “proximate cause” and “independent intervening cause,” demonstrates clearly to me that the negligence of the defendants in stopping or parking on the main travelled portion of the highway could not constitute a proximate cause of the second collision from which plaintiff’s injuries resulted.
Here the evidence is that Kenosha (Kenosha Auto Transport Corporation and its driver Woodburn) brought its tractor and trailer to rest on the highway behind the O’Connor automobile. Woodburn remained in the vehicle about 30 seconds, and then got out, where he remained for about another 30 seconds. He heard a vehicle approaching and started to get back inside the cab of his vehicle when the Baumer vehicle collided with the rear of the Kenosha vehicle.
The Kenosha vehicle consisted of a tractor and a transport trailer on which were loaded six automobiles. Across the rear of this trailer there were a cluster of three red lights in about the center thereof and about four feet above the ground or road surface, a red clearance light on each side about 3'6" above the road surface, and two red flashing lights which were about 6" from the top of the trailer. All of these lights were burning and visible from the rear, except as their visibility may have been obscured by the dust.
Woodburn’s visibility was about 200 feet ahead as he approached the O’Connor automobile, and during the time he remained stopped on the highway prior to the accident. He saw the O’Connor automobile and the Richins truck ahead. He admitted he could probably have driven off the highway.
The Baumer vehicle (driven by Logan), which collided with the rear of the Kenosha vehicle, had a gross weight of between 60,000 and 65,000 lbs. Logan was familiar with the highway and was driving at about 55 miles per hour. He saw the dust ahead, but made no effort to slow down, other than to take his foot off the accelerator, until he was inside the dust and through which he could not see. He then applied his brakes and the collision with the rear of the Kenosha vehicle occurred almost immediately. He has no recollection of seeing the Kenosha vehicle prior to the collision. He alone failed to react as had all those who preceded him, in that he did not bring his vehicle to a stop before colliding with another vehicle.
Woodburn, driver of the Kenosha vehicle, admittedly had sufficient visibility and sufficient time in which to remove his vehicle from the highway.
In my opinion, the negligence of these two drivers was not only sufficient to break the natural sequences of the negligence of the other defendants in stopping on the highway, but in fact did so, and was the proximate cause of the second collision. If the negligence of the remaining defendants could be said to have proximately caused Woodburn to stop on the highway, their negligence was at rest once Wood-burn had stopped and had sufficient time to remove his vehicle from the highway. So long as he remained stopped or parked on the highway, when he could admittedly have gotten off the highway, the presence of his vehicle prevented a direct collision by an approaching vehicle with the vehicles ahead, and his negligence in so remaining on the highway interrupted the natural sequence of events which might have followed from the negligence of those stopped ahead of him. His negligence and the negligence of Logan, which, as already stated, consisted of conduct unlike that followed by all the other drivers in approaching the dust, produced a result different than that which could reasonably have been foreseen by the other defendants. The negligence of Woodburn and Logan was not only the immediate cause of the second collision, but was the efficient producing cause thereof, and without which the plaintiff would not have been injured.
As already stated, I believe the New Mexico law compels the same result reached by the Illinois court in the factually similar case of Anderson v. Jones, supra. I agree with the majority that the Oklahoma rule, as quoted from Beesley v. United States, 364 F.2d 194 (10th Cir. 1966), appears to be somewhat different from the New Mexico rule, in that it is stated the original act is not a proximate cause of the injury even though the injury would not have occurred except for the original act. However, the New Mexico and Oklahoma definitions of proximate cause are almost identical in their wording. See U.J.I. 12.10; Haworth v. Mosher, 395 F.2d 566 (10th Cir. 1968); Beesley v. United States, supra. Proximate cause is defined in U.J.I. 12.10 as follows:
“The proximate cause of an injury is that which in a natural and continuous sequence [unbroken by any independent intervening cause] produces the injury, and without which the injury would not have occurred. [It need not be the only cause, nor the last nor nearest cause. It is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes the injury].”
Regardless of whether negligently stopping on a highway be called “negligence” or a “condition,” the stopping must be a proximate cause of the resulting injuries before there can be liability for the stopping. Here we are concerned only with the issue of negligence in stopping on the highway, when it was practicable to stop off the highway. There are factual issues as to whether the different defendants now before us were on or off the highway, and, if on the highway, whether it was practicable for them to have gotten off the highway. However, the negligence of Wood-burn in not removing the Kenosha vehicle from the highway, when it was practicable for him to do so, and the negligence of Logan, in his operation of the Baumer vehicle, were the concurring proximate causes of this second accident. This second accident would not otherwise have occurred. The negligence of each of the defendants in this appeal in stopping on the highway was at most a remote cause, which in no way proximately contributed to the second accident and plaintiff’s resulting injuries. In addition to the foregoing cited cases, compare § 4, and cases therein cited, of Annot., 58 A.L.R.2d 270 at 284.
For the reasons stated, I respectfully dissent.