Wilson v. Wylie , 86 N.M. 9 ( 1973 )

OPINION

LOPEZ, Judge.

Defendant Kenneth Wylie was the operator of an automobile which struck and killed plaintiff’s decedent, a minor 7 years, 10 months old, who was riding a bicycle at the time. The trial court, sitting without a jury, awarded $57,000.00 for the present worth of the continued life of decedent and $10,000.00 for loss of society.

The defendants raise the following points for reversal of the judgment: (1) substantial evidence of proximate cause; (2) contributory negligence of decedent; (3) contributory negligence of decedent’s parents, including the plaintiff herein; (4) excessiveness of the award of $57,000.00; (5) failure of the trial court to consider mitigating circumstances when making its award; and, (6) the award for loss of society.

We affirm in part and reverse in part.

(1) Substantial evidence of proximate cause.

The trial court found there was no evidence of brake failure prior to the accident. The defendants claim that the accident was caused by the unexpected failure of the brakes on the left side of the car to function properly at the time of the accident. They argue that the alleged defect caused the car to veer to the right resulting in the collision. Relying on skid marks showing that the automobile did veer slightly to the right, they conclude that the trier of fact is bound by physical evidence tending to support their theory. See Ortega v. Koury, 55 N.M. 142, 227 P.2d 941 (1951); Sanchez v. Public Service Company, 82 N.M. 752, 487 P.2d 180 (Ct.App.1971), rev’d 83 N.M. 245, 490 P.2d 962 (1971); Bolen v. Rio Rancho Estates, Inc., 81 N.M. 307, 466 P.2d 873 (Ct.App.1970). These cases, as cited by defendants, involve situations where physical evidence directly contradicts oral testimony by a witness, rendering the oral recollection of the witness inherently improbable. This is not the case here. Rather, it is a case of conflicting inferences to be drawn from the undisputed evidence. One could infer brake failure from a skid mark gradually veering to the right; On the other hand one could infer that the car had a natural tendency to veer when skidding at high speeds. The trial court, in accepting the latter inference, was no doubt influenced by the following competent testimony: that the car tended to the right when braked at speeds above 60 miles per hour; that the car was being driven at 80 miles per hour immediately prior to the collision; that road tests performed subsequent to the accident revealed no defect in the automobile’s braking mechanism; that an examination by the investigating officer immediately after the accident revealed a firm brake pedal, no brake fluid leakages and no brake defect; and that if the brakes on the left side had completely failed, as defendant claims, the car would have gone into a violent spin, instead of gradually veering to the right.

Even if this court was disposed to hold that a person driving 80 miles per hour in a residential area has not proximately caused a collision with a bicycle rider because the car failed to skid in a straight line, we still would accept the trial court’s finding. From the evidence, the trial court could have inferred that defendant’s brakes worked properly, considering the speed. This court will not review the facts, weigh them and consider inferences contrary to those reasonably drawn by the trial court. Jones v. Anderson, 81 N.M. 423, 467 P.2d 995 (1970); Kerr v. Schwartz, 82 N.M. 63, 475 P.2d 457 (1970).

(2) Contributory negligence of decedent.

Defendants advance a negligence per se argument in respect to decedent, claiming that he violated §§ 64—19-5(a), 64-18-8(a), 64-18-13(a)(2), 64-18-27(b), 64-18-29 and 64-18-44, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2), in addition to a claim that he failed to keep a proper lookout and exercise due care. The first three statutes require bicycles and other vehicles to proceed on the right side of the roadway. The other three relate to stop signs and rights-of-way.

The accident occurred at the intersection of Chelwood, a north-south street, and Menaul, an east-west street. The trial court found that decedent was proceeding in a southerly direction on Chelwood at the time of the accident. The Wylie vehicle was traveling in an easterly direction on Menaul. Even if we accept defendants’ contention that decedent was operating his bicycle on the left side of Chelwood in violation of the statutes alluded to, we must uphold the trial court’s finding of absence of contributory negligence.

In Martin v. Gomez, 69 N.M. 1, 363 P.2d 365 (1961), the defendant driver, at the time of the accident, was concededly in violation of § 64-18-8, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 2), relied on here by defendant. The court in Martin stated:

“* * * It may be conceded that the defendant violated the provisions of the statute and the pertinent city ordinance; yet, this fact-does not resolve the decisive question of causation.

“Granting that the defendant violated this statutory mandate, nevertheless, the evidence in this case relative to a causal connection between the statutory violation and the injury is not such as would have justified the trial court in ruling as a matter of law that the violation was the proximate cause of the injury. Consequently, the trial court was correct in leaving the issue of causation to the jury.”

That the same rule applies in cases dealing with contributory negligence is clear from Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967). Here the evidence sustains an inference that the collision would not have been avoided even if the decedent had been obeying the statutory mandates relating to traffic flow. The violation of the statutes, if any, did not even cause or contribute to the accident in fact. Causation, at best, was a question for the trier of fact.

As to the statutes relating to stop signs, there was no proof whatsoever that decedent failed to stop as required before crossing Menaul. No witness saw him when he initially entered the intersection. Thus, defendants have failed to carry their burden. Realizing this, defendants argue that decedent, even if he did stop, failed to yield to the Wylie vehicle. The rule on the requirement to yield is stated in Brizal v. Vigil, 65 N.M. 267, 335 P.2d 1065 (1969), as follows:

“Consequently, * * * [the plaintiff] having entered the intersection at such interval of time and distance as to safely cross ahead of the vehicle approaching. from the east, had its driver been exercising due care, the statute secured to him the prior use of the intersection.”

If one who enters an intersection after heeding a stop sign is hit by a vehicle greatly exceeding the speed limit, the issue of whether he is contrihutorily negligent is again for the trier of fact.

Finally, defendants allege a breach of the common law duties mentioned above. The only testimony not discussed previously, which defendants rely upon to support this contention, is that of one of the passengers in the Wylie vehicle. The witness testified that the decedent was looking straight ahead as he proceeded in a direction perpendicular to the movement of the automobile. We think that this testimony, even if believed, would not require a finding of contributory negligence as a matter of law. The direction in which the decedent was looking immediately prior to impact sheds little, if any, light on the crucial question of what his actions were when he entered the zone of danger. Since no one saw decedent until after he was in imminent danger, the question was, at best, for the trier of fact.

(3) Contributory negligence of decedent’s parents.

Defendants allege that, “ * * * both of decedent’s parents were contributorily negligent in failing to instruct the decedent about crossing the intersection where the accident occurred, or in failing to restrict him from riding his bicycle in the intersection, and in failing to know of his whereabouts on the afternoon of the accident.” We can only conclude that decedent had a right to be in the intersection at the time of the accident. See § 64-19-2, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 2).

Defendants rely upon Foster v. United States, 183 F.Supp. 524 (D.C.N.M. 1959), aff’d. 280 F.2d 431 (10th Cir. 1960). That case is helpful here because it recognizes the rule that parents are not required to watch their children every minute of the day. However, the fact that the court in Foster held the parent contrihutorily negligent is of no avail to defendants here. The court in Foster was faced with a substantially different fact situation and was resolving the issue sitting as a trier of fact. Here the defendants have the burden of proving contributory negligence as a matter of law.

We find the case of Reardon v. Wilbur, 441 Pa. 551, 272 A.2d 888 (1971), more persuasive. There a nine-year-old pedestrian was struck at a busy highway intersection. The court stated :

“ * * * [T]he mere presence of a child of tender years on the street unaccompanied or unguarded is insufficient to establish parental negligence as a matter of law. Dattola v. Burt Brothers, Inc., 288 Pa. 134, 135 A. 736, supra.

“It is not negligence, as a matter of law, for parents to allow their nine-year-old children to go unattended outside the home * * *. Nor is it alleged that the father knowingly permitted her to cross the street at a place of danger. * * * ”

Also, in Payne v. Kingsley, 59 Ill.App.2d 245, 207 N.E.2d 177 (1965), the court stated:

“ * * * [the contributory negligence of parents] is ordinarily a question of fact for the jury to determine. * * * In making this determination, the jury must consider all of the attendant facts and circumstances, including the family relationship and station in life, the age and capacity of the minor and the nature of the danger to which the minor is exposed. * * *”

We feel that the trial judge had an opportunity to consider the factors alluded to in Payne and the testimony of the mother concerning her extensive warnings to decedent. Therefore, we feel there is ample basis to support the trial court’s finding of no parental negligence.

(4) Excessiveness of the award for the loss of the life of decedent to the estate.

Defendants attack the award of $57,000.-00 for the worth of the continued life of decedent as excessive. They argue that the trial court either mistook the measure of damages or was motivated by passion or sympathy. See Hall v. Stiles, 57 N.M. 281, 258 P.2d 386 (1953); Baca v. Baca, 81 N. M. 734, 472 P.2d 997 (Ct.App.1970).

In Lujan v. Gonzales, 84 N.M. 229, 501 P.2d 673 (Ct.App.1972), we described the measure of damages in a wrongful death action as follows:

“Damages for wrongful death are recoverable ‘ * * * by proof of the worth of the life of the decedent * * * ’ and the measure of those damages is ‘ * * * the worth of life of decedent to the estate.’ Stang II, supra. ‘ * * * Damages for the wrongful death may be recovered by proof of the present worth of life of decedent to the decedent’s estate. * * * ’ Stang I, supra. Pecuniary injury to statutory beneficiaries, Stang I, supra, and net income during probable life, Varney v. Taylor, supra, are no more than evidentiary items admissible in establishing the present worth of life.”

Plaintiff relies upon the testimony of Dr. Everett G. Dillman, an economist and statistician whose qualifications are unimpeachable and unchallenged, to support the trial court’s Finding of Fact No. 29. The finding states that, “ * *' * The present pecuniary value- of decedent’s lost earning capacity is $57,000.00. * * *”

Dr. Dillman’s testimony can be summarized as follows: The worklife expectancy of decedent was 43.4 years. Decedent would have probably married and remained married for 75 percent of his worklife expectancy, graduated from high school and completed at least two years of college. The average high school graduate earns $371,094.00 during his lifetime. Over decedent’s worklife expectancy, this would amount to a probable annual income of $8,551.00 in 1968 dollars. Compounding productivity increases of 3.25 percent annually for ten years, decedent could be expected to be earning an average income of $13,929.00 per year, assuming he entered the labor force in ten years at age eighteen. At this income base, compounding at 5 percent per year for productivity increases and projected annual inflation of 1.75 percent earnings of $2,037,159.00 could be expected over 43.4 years. The present, discounted value of decedent’s probable net income after the necessary deductions for taxes and personal maintenance, assuming him to be an unmarried high school graduate, is $160,751.00; assuming the probabilities of marriage, $237,346.00; assuming four years of college and unmarried, $208,783.00; assuming four years of college and adding the probabilities of marriage, $308,263.00.

Defendants support their contention that the trial judge acted out of sympathy or mistake by arguing that she relied upon the allegedly “speculative,” “impractical” and “foolish” testimony of Dr. Dillman. Unfortunately, defendants fail to analyze and cite no cases discussing the legal theories of speculative damages and inherently improbable testimony. However, we need not answer defendants’ generalized contentions relating to the probative value of Dr. Dill-man’s testimony.

There is other, substantial evidence in the record, which, when combined with unchallenged portions of Dr. Dillman’s testimony, supports challenged Finding No. 29. This evidence, in the form of decedent’s father’s income tax returns for the four years prior to trial, was introduced by defendants themselves. In fact, defendants commend this evidence to us as a far better basis than Dr. Dillman’s testimony for determining the probable net income of decedent.

Using the father’s income as a basis for predicting the performance of the son has found some support in the cases. See Williams v. United States, 435 F.2d 804 (1st Cir. 1970); Blisard v. Vargo, 185 F.Supp. 73 (E.D.Pa.1960), aff’d. 286 F.2d 169 (3d Cir. 1961); Zannelle v. Pettine, 51 R.I. 359, 155 A. 236 (1931). Dr. Dillman, under cross-examination by defendants’ counsel, testified that the son is likely to attain the same “occupational situs” as his father.

Although defendants’ counsel has not placed the income tax returns upon which he relies in the appellate record, we believe that we can reconstruct their substance from the testimony of various witnesses. The 1968-1971 federal income tax returns for decedent’s father indicate that his average annual adjusted gross income for that period was approximately $5,700.00. Dr. Dillman testified that the earnings of decedent’s father during this period would be likely to reflect his expected average annual earnings throughout his worklife. Taking deductions for state and federal taxes from standard tables, which we judicially notice, and deducting the maximum social security tax' as testified to by Dr. Dillman, the net average income drops to $4,083.00.

At this point we must depart slightly from the standard formula for computing probable net income set out in Varney v. Taylor, 77 N.M. 28, 419 P.2d 234 (1966), appeal after remand 79 N.M. 652, 448 P.2d 164 (1968). We feel that depreciation deductions taken by decedent’s father, which have lowered the adjusted gross income for income tax purposes, should be returned to the income base for wrongful death purposes. Although New Mexico follows a net income approach, the court in Varney v. Taylor, supra, stated:

“* * * There are, no doubt, other amounts which should reasonably be deducted from gross earnings to arrive at that figure which would properly amount to the equivalent of the loss of reasonably expected benefits that would have resulted from the continued life of the decedent.” [Emphasis added]

Decedent’s father testified as follows:

“Q. Now, from * * * [gross income in 1970] you deducted six thousand dollars in depreciation ?

“A. Yes, that’s correct.

“Q. So actually that is money that actually didn’t come out of your pocket, so to speak, at that time, is that right?

“A. Yes.

“Q. You had access to that money? “A. Yes.”

Since depreciation represents a “benefit” over and above adjusted gross income, we think the trial court would have been justified in considering it net income.

If an average of $6,000.00 per year depreciation for the three (of four) years decedent’s father took' such a deduction is added to average adjusted gross income and if a personal maintenance deduction of 42 percent (as testified to by Dr. Dillman) is taken, the average annual net income base becomes $4,978.00. The present worth of that figure over decedent’s worklife expectancy of 43 years, following Dr. Dill-man’s method for computing present worth, is $59,112.00. That amount substantially supports the trial court’s finding of $57,000.00 for the present value of decedent’s lost earning capacity.

Defendants also point to the trial court’s action in ignoring alleged mitigating circumstances and in ignoring the absence of pecuniary injury to the statutory beneficiaries in support of their contention that the trial judge acted out of sympathy or mistake. Mitigating circumstances, are not apparent from this record (see discussion under next point). Defendants presented no proposed findings of fact on the absence of pecuniary injury to the statutory beneficiaries; nor did they discuss the issue in their memorandum to the trial court on damages. The matter being presented for the first time on appeal, we do not consider it. See § 21-2-1(20), N. M.S.A.1953 (Repl. Vol. 4).

Finally, defendants conclude that the verdict is excessive by comparing it with other New Mexico verdicts. As we have said, this verdict is supported by substantial evidence. Even assuming comparison of verdicts is a proper method of determining excessiveness, we refer defendants to Annot., 49 A.L.R.3d 934 (1973).

(5) Mitigating circumstances.

The defendant complains that the trial judge did not consider the following mitigating circumstances: the ' failure of the brakes; the conduct of the decedent; and, the conduct of decedent’s parents. As we stated earlier, there is substantial evidence in the record which indicates that the brakes did not fail and that the decedent acted with due regard toward his own safety. The alleged misconduct of the parents, if it existed, was so remote to the accident itself that the trial judge was justified in ignoring it.

(6) Loss of society.

Plaintiff would have us sustain the $10,000.00 awarded by the trial court for loss of decedent’s society, companionship, care and protection. In so contending, plaintiff recognizes Cerrillos C. R. R. Co. v. Deserant, 9 N.M. 49, 49 P. 807 (1897), overruled in part in Stang v. Hertz Corp., 81 N.M. 348, 467 P.2d 14 (1970). The court in Cerrillos stated:

“* * * Such a rule must be that, from the proof as to age, earning capacity, health, habits, and probable duration of life, the jury shall say what is the present worth of the life of deceased, with nothing to be added by way of consolation to the parties or party entitled as distributees to the-proceeds of recovery, and nothing for suffering or anguish of mind or body by the deceased. It is resolved into a cold question of dollars, with sentiment in no way to be taken into account. * * * ” [Emphasis added]

It is true, as plaintiff argues, that this statement has been considerably eroded. See Stang v. Hertz, supra. However, the statement forbidding a recovery of the type involved here has never been overruled. Therefore, we are bound by the holding in Cerrillos that loss of society is not an element of damages for wrongful death. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).

We affirm the judgment in respect to liability. We affirm the judgment of $57,000.00 for the loss of the child. We reverse the award of $10,000.00 for the loss of the society of the child.

It is so ordered.

SUTIN, J., concurs in part and dissents in part. HERNANDEZ, J., specially concurs.