Chavez v. Worley , 48 N.M. 449 ( 1944 )

On Motion for Rehearing. The appellant complains on rehearing that on the authority of Morehead v. Atchison, T. S.F.R. Co., 27 N.M. 349, 201 P. 1048, and Gray v. Esslinger, 46 N.M. 421, 130 P.2d 24, not noticed in our original opinion, we should hold as a matter of law that the appellee's decedent was guilty of contributory negligence. In other words, we are asked to say as a matter of law that the decedent was negligent in attempting to drive across a road 18 feet in width on the traveled portion with shoulders available for travel ten feet in width on either side thereof in the path of an oncoming truck 600 feet distant proceeding at the rate of 40 miles per hour whose driver had opportunity for unobstructed vision of decedent's car from the moment it entered the intersection.

We think nothing said in either of the cases mentioned compels such a holding. Neither are we satisfied that any twelve men of reasonable minds would agree the decedent took a chance which a reasonably prudent person would not have taken in attempting the crossing and, hence, was negligent in so doing.

"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." Olguin v. Thygesen, 47 N.M. 377, 143 P.2d 585, 592.

The motion for rehearing will be denied.

It is so ordered.

SADLER, C.J., and MABRY, BRICE, and THREET, JJ., concur.