Alarid v. Gordon
Decision Date | 01 August 1931 |
Docket Number | No. 3565.,3565. |
Citation | 35 N.M. 502,2 P.2d 117 |
Parties | ALARID et al.v.GORDON et al. |
Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Pedestrian falling into unknown, unlighted, and unguarded open lateral held not as matter of law guilty of contributory negligence by reason of choosing street in which sewer construction was going on and following ordinarily used footpath therein in darkness.
Choosing a street, not closed to travel, in which known sewer construction is going on, and following the ordinarily used footpath therein, in darkness, in preference to a somewhat less convenient but safe route, held not, as matter of law, contributory negligence of one falling into unknown and unlighted and unguarded open lateral extending from sewer to path.
Sewer contractor and city held not as matter of law relieved from liability for negligence for pedestrian's injuries from fall by having employed watchman to place red lights at open sewer laterals, where street and path were not barricaded.
Employing watchman to place red lights at open sewer laterals from center of street to footpath therein, and to inspect lights at two-hour intervals, the street and path not being barricaded, held not, as matter of law, full discharge of duty of sewer contractor and city to public, so as to absolve from liability for negligence to one who, pursuing the path in darkness, fell into unlighted lateral.
Whether right of action for personal injury to married woman is community property to be asserted by husband, not decided.
In action by married woman for personal injury, joinder of husband as party plaintiff by trial amendment held not error, where defendants claimed right of action was in husband (Comp. St. 1929, § 105-605).
Husband of woman suing for personal injury may be joined as party plaintiff by trial amendment when defendants raise point that right of action is in husband as head of community.
Appeal from District Court, Santa Fé County; Holloman, Judge.
Action by Socorro Alarid against D. G. Gordon and the City of Santa Fé, in which Ricardo Alarid, husband of plaintiff, was joined as party plaintiff by trial amendment. From a judgment for plaintiffs, defendants appeal. On motion for rehearing.
Affirmed.
City held not as matter of law relieved from liability for negligence for pedestrian's injuries from fall by having employed watchman to place red lights at open sewer laterals, where street and path were not barricaded.
Francis C. Wilson and Thos. H. Dodge, both of Santa Fé, for appellant D. G. Gordon.
M. W. Hamilton, of Santa Fé, for appellant City of Santa Fé.Roberts, Brice & Sanchez, of Santa Fé, for appellees.
Socorro Alarid sued D. G. Gordon and the city of Santa Fé for negligence resulting in personal injuries. By trial amendment to the complaint, Ricardo Alarid, husband of Socorro Alarid, was joined as a party plaintiff. The cause was tried without a jury. From a substantial judgment for plaintiffs, defendants have appealed. We find it convenient to withdraw the original opinion.
Appellant Gordon was engaged in the construction of a sewer, under contract with appellant city. At the time in question the main sewer, in mid street, had been completed and the excavation filled. From the main sewer to the property line there were nine open laterals. Appellee Socorro Alarid was proceeding, in the darkness, along a pathway “in said street along the south side thereof, adjoining the property line which was customarily used by foot passengers in traveling along said street” (, and was injured by walking into the fifth of the open laterals. 8) This lateral was not at the time furnished with a light, barricade, or other warning sign. The street had not been closed to traffic.
The trial court found generally that appellee was at all material times exercising due care and caution and that she was not guilty of contributory negligence. He also concluded that the appellants were guilty of negligence in leaving the excavation open and unlighted, in not barricading the street against public travel and in not keeping a guard to protect the public using the street.
[1] Appellants first contend that appellee was guilty of contributory negligence as matter of law. They urge that it appears by undisputed evidence that she “*** entered upon a dangerous place and attempted to pass through and over said dangerous place with full knowledge of the fact that public improvements were being made thereon and that in entering the same and attempting to pass along the same that she was taking upon herself a risk of which she was fully advised and was thereby guilty of contributory negligence as a matter of law.” And, further, “*** that with full knowledge of the dangerous route which she chose to follow she might have chosen a safe route which would not have taken her out of her way more than a few minutes at most, and that in electing to take the dangerous route instead of the safe route she was guilty of contributory negligence which was the primary cause of the accident.”
We find the propositions unsound both in fact and in law. We think the trial court was within the evidence in refusing to find that appellee was fully aware of the danger. She did know that a sewer was being constructed in the street. But, from her home, she had daily observed pedestrians passing along it. It was not shown that she had knowledge of the existence of the laterals. She must have discovered them soon after turning upon the street. But she had already made her choice of route. To have turned back would have been unnatural. She also discovered, as she no doubt supposed, that each of these laterals was marked with a red light. Whether an ordinarily prudent person would have anticipated that, of a large number of laterals, all except one would be lighted, was, of course, a question for the trier of the facts. Johnson v. City of Santa Fé, 35 N. M. -, 290 P. 793.
[2] Appellants also contend that, on the undisputed evidence, they were not guilty of negligence. They rely upon testimony which they adduced to the effect that they employed a watchman to keep all openings on this and another construction job lighted during the hours of darkness; that he made a complete round of both jobs each two hours; that a light had been placed at the lateral at which the accident occurred, but that it had been broken or extinguished in some unexplained manner, so that the lateral was in darkness when appellee approached it. The contention is that appellants have shown that they took every reasonable precaution to prevent such an accident as occurred.
We cannot, as matter of law, hold that this was a full discharge of appellant's duty, to take reasonable precautions to protect the public. Having concluded that it was unnecessary to exclude travel from the street entirely, and that it was unnecessary to keep a guard constantly on duty to warn against the dangers, and the devices upon which they placed reliance having failed, we are unable to say that reasonable minds could not reach different conclusions on the question of negligence.
We think that finding 8, above quoted, is supported by substantial evidence. This defeats the contentions of appellants that the path which appellee followed was not in the street and that, consequently, they were under no duty as to its safe condition for travel.
[3][4] In the original complaint Socorro Alarid was the sole plaintiff and the fact that she is a married woman was not disclosed. It appeared at the trial when it was shown that certain expenses of medical treatment were paid by the husband. The objection was made that such payments would not constitute an element of damages recoverable by the wife. At the close of ...
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...another route, although there may be one open to him.' We have heretofore recognized this principle in the case of Alarid v. Gordon, 1931, 35 N.M. 502, 2 P.2d 117, 118, where the plaintiff fell into an unlighted sewer excavation along the street. There, after selecting the way, the plaintif......
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...unknown. Prior to 1941, we find only two cases that involved actions against municipalities for injuries to the person. Alarid v. Gordon, 35 N.M. 502, 2 P.2d 117 (1931); Johnson v. City of Santa Fe, 35 N.M. 77, 290 P. 793 (1930). These were actions against the City of Santa Fe. No towns or ......
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