Notwithstanding the foregoing provisions of Sections 66-7-333 through 66-7-340 NMSA 1978 every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway. History: 1953 Comp., § 64-7-337, enacted by Laws 1978, ch. 35, § 441. ANNOTATIONSCross references. — For penalty assessments for violations, see 66-8-116 NMSA 1978. No absolute duty to sound horn if necessary. — Section 64-18-36, 1953 Comp. (similar to this section), does impose the duty of 'warning by sounding the horn if necessary.' This, however, is not an absolute duty and defendant could be excused from a violation of the provision. Tenorio v. Nolen, 1969-NMCA-068, 80 N.M. 529, 458 P.2d 604. Duty is greater than mere opportunity. — Inclusion of the words 'when the party has the opportunity to sound his horn' in an instruction on defendant's duty under 64-18-36, 1953 Comp. (similar to this section), would have been improper because the instruction would not then have correctly stated the duty imposed by law. an instruction on defendant's duty under 64-18-36, 1953 Comp. (similar to this section), would have been improper because the instruction would not then have correctly stated the duty imposed by law. Tenorio v. Nolen, 1969-NMCA-068, 80 N.M. 529, 458 P.2d 604. Since there was no proof that defendant did or did not sound his horn and defendant testified that he did not recall if he had, and nobody testified that he had not, no issue of negligence because of failure to sound a horn was presented. Montoya v. Williamson, 1968-NMSC-162, 79 N.M. 566, 446 P.2d 214). Ability to avoid collision factual issue. — In a wrongful death action, the question of whether a motorist could have avoided a collision with a pedestrian by keeping a proper lookout and maintaining proper control of his vehicle is normally a factual issue for the trier of fact. Trujillo v. Treat, 1988-NMCA-017, 107 N.M. 58, 752 P.2d 250. Am. Jur. 2d, A.L.R. and C.J.S. references. — Duty of motor vehicle driver approaching place where children are playing or gathered, 30 A.L.R.2d 5. Duty and liability with respect to giving audible signal upon approaching pedestrian, 24 A.L.R.3d 183. of motor vehicle driver approaching place where children are playing or gathered, 30 A.L.R.2d 5. Duty and liability with respect to giving audible signal upon approaching pedestrian, 24 A.L.R.3d 183. Who is 'pedestrian' entitled to rights and subject to duties provided by traffic regulations or judicially stated, 35 A.L.R.4th 1117. 60A C.J.S. Motor Vehicles §§ 354, 394, 396.
New Mexico Legal Code