¶1(dissenting).
¶2The majority opinion picks out and re-, lies on the evidence most favorable to a reversal of the judgment instead of following the heretofore universal rule that we must view the evidence in all its aspects most favorable to the judgment. The cases of Brown v. Cobb, 53 N.M. 169, 204 P.2d 264, and Griego v. Conwell, 54 N.M. 287, 222 P.2d 606, are two of the most recent on- the subject. A hasty check 'shows we have announced the. same rule in at least 32 other cases. This case is the first to follow a contrary rule.
¶3I believe the majority opinion should have stated the photograph of the street shows a vine on the yard fence immediately opposite the point where the child was struck, and also that there is a large telephone pole in the middle of. the sidewalk which immediately adjoins the street; and further that the car was stopped in 20 feet after the child was struck.
¶4Had the majority followed the heretofore settled rule above mentioned, the fol- . lowing would have been the facts on which the case would be decided.
¶5That the defendant was driving along the street on a clear day at a speed of between ten and fifteen miles per hour, with his car under proper control; that he stopped it 20 feet from the point of impact; that he was driving along the right hand side of the street, watching the street ahead of him; that he did not see the child at any time before the car struck it on the left side of the head.at a point between three and five feet from the right hand side of the street; that the child was last seen about fifteen minutes before the accident playing in the yard of his home, and no one saw him enter the street, and neither'did any one see him in it until after he was struck; that he was struck approximately opposite the northerly portion of the garden of his home; that along the front of the garden and adjacent to the walk along the street there is a fence with a vine on it, and 'there are two trees just inside the fence; at the northerly end outside the fence and adjacent to the street there is a large telephone pole; and that none of the four passengers riding in defendant’s car saw the child at any time before the accident. It should be added that a photograph of the street, vine, trees and pole shows there was little, if any, foliage on vine or trees when the accident occurred on May 15, 1948. The defendant is bound by the finding of the court that he knew pedestrians, including children, might be in the street at or near the location where the accident occurred, that the street was clear of all traffic except his car, and that he had a clear view of the street for 600 feet before the point of .the accident.
¶6No one saw the child in the street before it was hit, and how or when it got there is entirely a matter of speculation, conjecture and surmise, and the finding based on all or either is not supported by substantial evidence. Citizens Finance Co. v. Cole, 47 N.M. 73, 134 P.2d 550.
¶7It was held in Cerrillos Coal R. Co. v. Deserant, 9 N.M. 49, 49 P. 807, where it was purely speculative as to which of two ways an explosion causing injuries originated, the verdict should be for the defendant if, by either or both, the defendant was exempt from liability. This case has never been modified or overruled until today.
¶8The case of Medina v. New Mexico Consolidated Min. Co., 51 N.M. 493, 188 P.2d 343, was one in which the body of a shift boss with his head blown off was found in a part of the mine where work was not being done that day. Suit was filed by his widow to recover under the Workmen’s Compensation Act, 1941 Comp. § 57-901 et seq., and the trial court directed a verdict in favor of the defendant, for the reason it had not been shown the explosion arose out of and in the course of employment of deceased. It was here urged that it was a case of suicide and the defendant was, therefore, not liable. We held in the absence of any proof on the subject, the presumption against one committing suicide and the fact that he was killed on the employer’s premises were sufficient to take the case to the jury, but we did not hold the defendant liable as a matter of law.
¶9I do not believe any appellate court has held until today the mere fact an automobile collides with a pedestrian in a street raises a presumption of negligence. In fact, the rule is stated to be just the contrary. See Annotations in 5 A.L.R. 1240, 64 A.L.R. 258 and 93 A.L.R. 1110.
¶10In my research in this case I have kept in mind that no.one saw the child in the street before it was struck, that it is unknown how long it had been there, when it entered, or from what place it came. The only reported cases I have been able to find where comparable facts were present are the following: Gavin v. Bell Telephone Co., 87 Pa.Super. 276; Whalen v. Mutrie, 247 Mass. 316, 142 N.E. 45; Oland v. Kohler, 111 Pa.Super. 185, 169 A. 411; Purdy v. Hazeltine, 321 Pa. 459, 184 A. 660; Stauffer, Adm’r v. Railway Express Agency, 355 Pa. 24, 47 A.2d 817; Wiser v. Parkway Baking Co., 289 Pa. 565, 137 A. 797; McAvoy v. Kromer, 277 Pa. 196, 120 A. 762; Flanigan v. McLean, 267 Pa. 553, 110 A. 370.
¶11In some of these cases nonsuit was entered against the plaintiff, in others judgments were entered notwithstanding the return of verdicts for the plaintiff, while in the others, judgments on findings or verdicts in favor of the plaintiff were reversed and judgments entered for the defendants. The plaintiff was not allowed recovery by the appellate courts in a single instance and they hold the doctrine of res ipsa loquitur ■may not be invoked in such cases. My extensive study of this case convinces me that not a single reported case can be found where a judgment in favor of the plaintiff was allowed to stand where the pedestrian who was struck was not seen in the street by anyone before the accident. A number of the cases were brought to recover for injuries inflicted on small children.
¶12In the Montana case, Johnson v. Herring, cited in the majority opinion, the child was seen in the alley 20 or 25 feet ahead of the truck immediately before it was struck by the truck. The trial court had directed a verdict for the defendant but its judgment was reversed with instructions to submit the case to a jury, not with instructions to assess damages as is done here.
¶13In Ryczko v. Klenotich, 204 App.Div. 693, 198 N.Y.S. 473, a verdict had been directed for the defendant. There was testimony that the child was seen in the street ten or twelve feet in front of the car before it was struck, and the appellate divi-. sion held the issue of whether the defendant was negligent in hitting the child should have been submitted to the jury for its determination.
¶14The case of Bramley v. Dilworth, 6 Cir., 274 F. 267, which is also cited in the majority opinion is one where the defendant overtook and sideswiped the plaintiff’s car in an attempt to pass it. No one can dispute the statement lifted from the opinion that it is the duty of the driver of a car to keep a lookout for others using the street.
¶15Gregware v. Poliquin, 135 Me. 139, 190 A. 811, is a case involving the collision of two automobiles in a street intersection and passengers riding in one of the cars sued the driver of the other car for injuries received in the collision. The court said the drivers of both cars were negligent, but that the negligence of the driver of the car in which the plaintiffs were riding could not be imputed to them. No one can quarrel with the statement the majority quote from this opinion, but it is hardly in point in the case under consideration.
¶16By considering only the evidence most favorable to the plaintiff, and then injecting the doctrine of last clear chance, adding a dash of the doctrine of res ipsa loquitur; indulging in surmise, conjecture and speculation, the majority-determine the defendant was guilty of negligence as a matter of law, reverse a contrary finding and judgment, and direct the trial court to assess the damages. As all of the cases I find on the subject hold the contraryj I dissent.