Gray V. Esslinger

The plaintiff as administrator of the estate of his deceased brother, Louis Linton Gray, appeals from a judgment of the district court of Dona Ana County entered on an instructed verdict for the defendant. As appellant, the plaintiff assigns a single error, namely, that the court erred in sustaining defendant's motion for an instructed verdict interposed at the close of plaintiff's case in chief. Under this claim of error, he argues two points, (1) that when reasonable minds may differ on the issue of contributory negligence, the matter is issuable and must be submitted to the jury; and (2) that if the defendant's negligence approaches wantonness by showing reckless disregard of human life, contributory negligence constitutes no defense. Since either point, if well taken, renders erroneous the action of the trial court in instructing a verdict for defendant and the first, certainly, and the second, contingently, will involve an analysis of the plaintiff's evidence, we turn at once to its examination.