On Motion for Rehearing. Defendants-appellants, in motion for rehearing, urge upon us a further consideration of the question whether contributory negligence should not be imputed to plaintiff as a matter of law. We gave full consideration to that question. Defendants cite and rely upon Pettes v. Jones, 41 N.M. 167, 66 P.2d 967, and Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814, which was cited and relied upon in Pettes v. Jones, but they fail to notice our later decision in Crocker v. Johnston, 43 N.M. 469, 95 P.2d 214, wherein Pettes v. Jones, in respect to the holding upon contributory negligence which we assume defendants rely upon, was overruled.
Plaintiff, it is true, was violating a statutory rule of the road in driving *Page 388 at the rate of 35 miles per hour with headlights which could afford vision for only some seventy-five feet ahead; but that fact alone does not establish such violation as a proximate cause of the injury. Negligence per se arising through the violation of a statute leaves unchanged the burden resting upon defendant to establish contributory negligence; and such negligence is not established until it is shown to be a proximately concurring cause of the injury. The question of contributory negligence, as it might or might not be sustained by the establishment of such proximate causation, was, under the facts of this case, one for the jury.
We accept defendants' claim that plaintiff was guilty of negligence per se, as affected by the question of light and speed; but we yet have the issuable question whether such negligence was a proximately concurring cause of the injury. This issue is to be resolved in the light of the facts, noticed in our original opinion, that the night was dark and there was a substantial likeness in color between the freshly oiled road and the dark, unlighted, road roller, thus rendering it less likely to focus quickly the attention of a driver.
The record is barren of any evidence on the distance within which a car travelling at a given rate of speed may be safely brought to a stop by a sudden application of brakes in good working order. We do not feel disposed to base a declaration of contributory negligence as a matter of law on mere speculation as to whether, if the plaintiff had had lights furnishing twenty-five feet additional range of vision, or, if he had been travelling at a speed fifteen miles per hour less than that admitted (either of which, under the facts here present, would have been within the law), he could or could not have brought his car to a stop within the distance he should have discovered the presence of the road roller, under the conditions shown to exist.
Likewise, we cannot resolve as a matter of law in favor of defendants' ably and earnestly presented contention that for plaintiff not to have seen the unlighted machinery before hitting it, travelling at any authorized rate of speed, necessarily presupposes that no lookout whatsoever was maintained by him. It might be conceded that he was not exercising quite as vigilant a lookout for that which "is unusual or unlikely to happen" as he was for road hazards lawfully employing the use of the road and, therefore, to be expected. Jacobs v. Moniz, 288 Mass. 102,192 N.E. 515, 517. And, the fact that his vision was not obstructed, since the road was straight and level and that no other vehicles were near the scene to confuse him, did not absolve plaintiff of the duty, nevertheless, of keeping a reasonable watch for traffic that might momentarily enter from either side of the road, as well as for hazards in the road straight ahead.
The circumstances of each case must determine the degree of alertness required of a driver in keeping a lookout for road hazards; and, usually, as here, it becomes a question for the jury. *Page 389
Other questions raised in the motion have been fully determined and need not be further discussed.
The motion is overruled, and,
It is so ordered.
SADLER, C.J., and BRICE and BICKLEY, JJ., concur.
THREET, J., did not participate.