Sheraden v. Black

752 P.2d 791, 107 N.M. 76, 1988 WL 30387
CourtNew Mexico Court of Appeals
DecidedFebruary 25, 1988
Docket9715
StatusPublished
Cited by45 cases

This text of 752 P.2d 791 (Sheraden v. Black) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheraden v. Black, 752 P.2d 791, 107 N.M. 76, 1988 WL 30387 (N.M. Ct. App. 1988).

Opinion

OPINION

DONNELLY, Chief Judge.

This is an appeal in a comparative negligence action. Defendant seeks review of a judgment of the district court entered after a bench trial, wherein plaintiff was awarded damages after he was injured by defendant’s automobile. Three issues are presented on appeal: (1) whether the trial court’s findings that defendant was negligent are supported by substantial evidence; (2) whether the court erred in failing to adopt specific findings of fact regarding the comparative negligence of the parties; and (3) whether the court erred in its award of damages. We affirm.

Plaintiff was struck by an automobile driven by defendant while plaintiff was walking across Eubank Boulevard in Albuquerque. Defendant stopped his automobile at a stop sign at the intersection of Los Arboles and Eubank N.E. and thereafter while making a left turn hit plaintiff who was standing in the median southbound lane of Eubank. At the time of the accident there were no vehicles ahead of defendant, it was daylight and there were no obstructions impeding defendant’s view.

I. SUFFICIENCY OF EVIDENCE

Defendant challenges the trial court’s determination of negligence, contending that the findings are not supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Tapia v. Panhandle Steel Erectors Co., 78 N.M. 86, 428 P.2d 625 (1967). On appeal, a reviewing court will resolve all disputed facts in favor of the successful party and all reasonable inferences will be indulged in support of the judgment below. Id. at 89, 428 P.2d at 628. Our review of the record before us indicates that the trial court’s findings as to defendant’s negligence in failing to see the plaintiff and avoid the collision are supported by substantial evidence.

The evidence adduced at trial indicated that there was no obstruction that would have prevented defendant from seeing plaintiff. In addition, Leslie Buchanan, another motorist, testified by deposition that when she saw plaintiff step off of the curb, she ceased accelerating her automobile in order to avoid hitting him. At trial, Albuquerque police officer Joseph E. James, one of the officers investigating the accident, testified that a contributing factor to the accident was defendant’s failure to observe the plaintiff.

Defendant cites the testimony of Jack L. Ostrower, a motorist who testified by deposition that, while following defendant, he did not see plaintiff crossing the street. The fact that a motorist driving behind defendant also failed to see plaintiff does not mandate reversal of the trial court’s decision. Where there are conflicts in the evidence, it is the duty of the fact finder to weigh and evaluate the evidence and to decide where the truth lies. Lewis v. Bloom, 96 N.M. 63, 628 P.2d 308 (1981).

The record indicates that sufficient evidence was presented for the trial court to conclude that defendant breached his duty to keep a proper lookout by failing to actually see plaintiff, who was in plain sight of others in like or similar circumstances to that of the defendant. The operator of a motor vehicle is required to exercise ordinary care to keep a proper lookout. Lopez v. Maez, 81 N.M. 693, 472 P.2d 658 (Ct.App.1970). See also SCRA 1986, 13-1201, 13-1202. Maintaining a proper lookout involves a duty to observe matters in plain sight. See Martinez v. City of Albuquerque, 84 N.M. 189, 500 P.2d 1312 (Ct. App.1972); see also SCRA 1986, 13-1203.

A reviewing court does not weigh the evidence but looks to see whether the evidence, viewed in the light most favorable to upholding the verdict, affords substantial evidence for the verdict; if so, the verdict must be affirmed. See Tapia v. Panhandle Steel Erectors Co. The trial court’s determination that defendant was negligent and was a contributing proximate cause of plaintiff’s injuries^, is supported by substantial evidence.

II. SUFFICIENCY OF FINDINGS

Defendant contends that the trial court erred in failing to make a finding specifically determining the percentage of comparative negligence of each of the parties. Defendant points out that instead of allocating the percentage of negligence of each party as a finding of fact, the trial court’s decision included the allocation of each party’s comparative negligence under the heading of “Conclusions of Law.” Although we agree with defendant’s contention that the trial court should have made a specific finding of fact allocating the comparative negligence of each party, upon review of the record before us, we conclude that reversal is not warranted. The trial court’s findings clearly indicate that the court found that both defendant and plaintiff were negligent and that their combined negligence was the proximate cause of plaintiff’s injuries. Moreover, the record indicates that substantial evidence supports the trial court’s finding that both the defendant and plaintiff were negligent and the final judgment entered by the trial court contained specific findings allocating the percentage of negligence between the parties.

The fact that plaintiff was found to have been negligent in crossing the street where there is no crosswalk and in failing to yield to traffic and in failing, to keep a proper lookout for motorists after stepping from the curb, all in violation of statute and ordinance, is not disputed by either party on appeal. Instead, as set forth in defendant’s brief-in-chief, defendant states that he is complaining only about the failure of the trial court to make a specific finding regarding the percentage of plaintiff’s negligence; nowhere in defendant’s brief does he challenge the percentages allocated by the trial court between the parties.

Defendant asserts that the trial court erred by failing to make a specific finding as to the percentage of negligence allocated to each party, and that without such specific finding, there is insufficient basis for the trial court’s determination that plaintiff’s negligence is limited to twenty-five percent. We disagree. It is well settled in New Mexico that the function of a reviewing court on appeal is to correct erroneous results, not to correct errors that, even if corrected, would not change the result. Wright v. Brem, 81 N.M. 410, 467 P.2d 736 (Ct.App.1970). The trial court is required to find only the ultimate facts, and the ultimate facts in a comparative negligence case embrace only negligence, causation, and the percentage of negligence. Marcus v. Cortese, 98 N.M. 414, 649 P.2d 482 (Ct.App.1982). Findings are to be liberally construed in support of a judgment, H.T. Coker Construction Co. v. Whitfield Transportation, Inc., 85 N.M. 802, 518 P.2d 782

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Cite This Page — Counsel Stack

Bluebook (online)
752 P.2d 791, 107 N.M. 76, 1988 WL 30387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheraden-v-black-nmctapp-1988.