Pettes v. Jones , 41 N.M. 167 ( 1937 )

The law as enunciated by Mr Justice SADLER is sound law, but he fails to apply it properly to the facts in the instant case.

Ordinarily, if the negligence of the plaintiff contributed "in any degree" or "to any extent," such negligence, when so found by a jury, would be an insufficient finding of contributory negligence to bar recovery for the negligence of the defendant. Ordinarily, such a specific finding could be reconciled with the general verdict. A finding by the jury that the negligence of the plaintiff contributed "in any degree" or "to any extent," in this jurisdiction, does not mean that the negligence of the plaintiff was the efficient or proximate cause of the injury of which he complains.

However, I base my concurrence in the result arrived at by Mr. Justice BICKLEY in this case on the law of negligence as held by our own court. We enunciated the rule in Thayer v. Denver R.G.R. Co., 21 N.M. 330, 154 P. 691. If the negligence of the plaintiff, which continues concurrently with the negligence of the defendant, contributed proximately to the injury of which the plaintiff complains, he, the plaintiff, cannot recover. In the case of Mayfield v. Crowdus, 38 N.M. 471, 35 P.2d 291, we held that any negligence of the plaintiff which contributed proximately and directly to cause the injury of which the plaintiff complains will bar recovery.

Here the jury brought in a verdict that the absence of the plaintiff's taillight contributed to the injury of which the plaintiff complains. The absence of a taillight which contributes to a rear-end collision is not a remote or probable cause, but is a proximate cause of the injury complained of. In other words, either the presence or absence of the taillight can either make no difference whatsoever in contributing to the injury complained of by the plaintiff, or it was the proximate cause. There can be no remote or probable cause as applied to the facts here. If its absence contributed to the injury at all or to "any extent" as found by the jury, then it contributed proximately and not remotely or probably.

For example: The absence or presence of a taillight on the car of the plaintiff could make no difference to a drunken or grossly negligent defendant. Its absence or presence in a case of that kind could not contribute in the slightest degree to the negligence of the defendant.

On the other hand, the driver of an automobile at dusk, without a taillight, invites rear-end collisions. The absence of a taillight, under such circumstances, when the jury says that it contributed in some degree to the injury complained of by the plaintiff, must be deemed the proximate cause or not at all.

In this jurisdiction the negligence of the plaintiff must enter into and form a part of the efficient cause of the injury before it will bar an action. Either this court must shut its eyes and say we do not know that which the average human being knows, or else take judicial notice of the fact that the absence of a taillight on an automobile driving at dusk is tantamount to a "keg of dynamite" on the highway, not only dangerous to the owner and occupant, but to every motorist on the highway, and is an invitation to collision and disaster. The absence of such taillight may not be the direct and only cause of the injury, but if its absence enters into and forms a part of the efficient cause of the injury complained of, it is a bar to recovery. To my mind the specific and general verdicts are irreconcilable.

By way of analogy, the pulling of the trigger on a loaded gun may be found by a jury to contribute in some degree to the death of a person struck by the bullet. The jury might say that the leaden ball entering the vital organ is the direct and positive cause of the death. Ought we to shut our eyes and say that the pulling of the trigger (though found by the jury to have contributed in some extent only) does not enter into and form a part of the whole efficient cause of the death.

The minds of reasonable men cannot differ in holding that the plaintiff, a driver of an automobile in the dusk of evening, on a much traveled highway, driving without a taillight, is guilty of conduct which falls below the standard to which he should conform, not only for his own protection, but which conduct is a legally contributing cause, co-operating with the negligence of the defendant, in bringing about the injury of which the plaintiff complains. The absence of a taillight under such circumstances is a substantial factor in bringing upon him the calamity for which he seeks money damages. If it is a factor in "any" degree, it is nothing else but a substantial factor, a proximate cause, and not a remote or probable cause.

To my mind this is sound law irrespective of any statutory ban against driving without a taillight, which statutory prohibition makes driving of a car without a taillight negligence per se. To my mind when a jury brings in a verdict that the absence of the taillight contributed in "any extent" to the injury complained of, such "any extent" means proximate cause. I cannot conceive of a case where the absence of a taillight which contributes to the injury complained of does not enter into and form a part of the efficient cause of the injury.

In the instant case, inasmuch as to my mind the special and general verdicts are irreconcilable, I concur in the result of the opinion of Mr. Justice BICKLEY.