Thompson v. Albuquerque Traction Co.

Citations

• 15 N.M. 407
• 110 P. 552

Syllabus

<p>SYLLABUS (BY THE COURT.)</p> <p>1. An instruction to the effect that, “in the absence of any provision of law regulating the speed at which a street car may be run or operated, those who operate it are bound by the same rule of due care which governs others using vehicles in the public streets; that is when, as in this case, the street car was operated in a public street,” correctly states the law applicable to the facts in this case and is not subject to an objection of uncertainty and indefiniteness.</p> <p>2. “The right of the railway in the street is only an easement to use the highway in common with the public. It has no exclusive right to travel upon its track, and it is bound to use the same care in preventing a collision as is the driver of a wagon or other vehicle.”.</p> <p>3. When a jury, in answering special interrogatories submitted to them at the request of the defendant, which interrogatories call for answers upon material facts in issue in the case, disregard the evidence in the case, and in answer to such interrogatories find a fact or facts wholly unsup-' ported by the pleadings or the evidence, it cannot be presumed, in view of such answers, that the defendant had a fair and impartial trial.</p> <p>4. Special findings, in order to support a general verdict, must correspond to the proofs- and be within the pleadings.</p> <p>5. “Although the general rule is that even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover if he himself be shown to have been guilty of contributory negligence which may have had something to do in causing the accident; yet the contributory negligence on his part would not exonerate the defendant, and disentitle the plaintiff from recovering, if it be shown that the defendant might by the exercise of reasonable care and prudence have avoided the consequences of plaintiff’s negligence.”</p> <p>.6. The facts., and the inferences to be drawn therefrom, with reference to the contributory