Anderson v. Welsh

• Citation: 527 P.2d 1079,86 N.M. 767,1974 NMCA 120
• Decision Date: 16 October 1974
• Docket Number: No. 1431,1431
• Parties: Woodruff J. ANDERSON, Plaintiff-Appellee, v. Donald C. WELSH, d/b/a Thunderbird Mobile Home Park, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1079

527 P.2d 1079

86 N.M. 767

Woodruff J. ANDERSON, Plaintiff-Appellee, v. Donald C. WELSH, d/b/a Thunderbird Mobile Home Park Defendant-Appellant.

No. 1431.

Court of Appeals of New Mexico.

Oct. 16, 1974.

Richard L. Gerding, Tansey, Rosebrough, Roberts & Gerding, P.C., Farmington, for defendant-appellant

James L. Brown, Benjamin S. Eastburn, Farmington, for plaintiff-appellee.

OPINION

SUTIN, Judge.

Defendant appeals from a judgment for plaintiff arising out of injuries sustained when plaintiff fell from a stile constructed and maintained by defendant.

Defendant presents four points for reversal: (A) defendant was entitled to a directed verdict and judgment N.O.V.; (B) trial court erred in instructing the jury during plaintiff's rebuttal that defendant had been impeached; (C) trial court erred in ruling as a matter of law that the Uniform Building Code of City of Farmington was applicable; (D) trial court erred in instruction on contributory negligence.

(A) Defendant was not entitled to directed verdict or judgment N.O.V.

(1) Facts

Plaintiff was a tenant of defendant's trailer park. Defendant had erected a wooden stile going over a fence which surrounded defendant's property. The steps of the stile were made from 4 4 's and 2 8 's with a handrail or bannister on each side. The stile was constructed for use of the tenants of defendant's trailer park to eliminate the problem of children having to walk down Main Street in order to get to grade school, but the actual use was not limited to children. It was commonly used by all tenants of the trailer court with the knowledge of the defendant.

Plaintiff was about 55 years of age. Prior to October 29, 1970, the day of the accident, plaintiff had used the stile some 72 times to go back and forth to work. He did not make a detailed inspection of the stile, but he knew it was steep; that the step was a little bit narrow because almost every time he came down the stile, he came down sideways, but he was careful how he went over the stile.

On October 29, 1970, sometime during the noon hour, as plaintiff was coming down the stile, 'just one time (he) stepped a little too far out on the step and . . . slipped and fell . . . and when (he) started falling (he) reached out and tried to grab anything (he) could, and the next thing (he) knew (he) was lying there on the steps . . ..'

(2) Plaintiff was not contributorily negligent as a matter of law.

Defendant claims plaintiff was contributorily negligent as a matter of law. The definition of negligence and contributory negligence set forth in U.J.I. 12.1 and 13.1 are yet the rules in negligence cases. Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1971). Rule 13.1 reads as follows:

When I use the expression 'contributory negligence', I mean negligence on the part of the plaintiff that proximately contributed to cause the alleged damages of which plaintiff complains. (Emphasis added.)

Rule 12.1 reads in part as follows:

An act to be negligent must be one which a reasonably prudent person would foresee as involving an unreasonable risk of injury to himself . . . and which such a person in the exercise of ordinary care would not do.

To hold plaintiff guilty of contributory negligence as a metter of law, we must declare that 'reasonable minds' cannot differ that plaintiff foresaw he would involve an unreasonable risk of injury to himself if he walked sideways down the steps of the stile; that this negligent act proximately contributed to cause his alleged damages. Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364 (1966). We speak in terms of 'that care which a reasonably prudent person exercises in the management of his own affairs.' U.J.I. 12.2, Ordinary Care.

Would 'reasonable minds' agree that a man 55 years of age, walking to and from work would use the stile? What are 'reasonable minds?' What standards compose a 'reasonable mind?' What conduct would these 'minds' foresee that a person of ordinary care would or would not do? How can we determine when these 'reasonable minds' will differ or agree? The answer is not found in New Mexico. Definitions of 'reasonable minds' are not forthcoming.

In Brewer v. Jacobs, 22 F. 217, 229 (C.C.W.D.Tenn.1884), Judge Hammond said:

. . . A reasonable mind is a sensible one, fairly judicious in its action, and at least somewhat cautious in reaching its conclusions.

. . . It is not reasonableness to the plaintiff's mind which is a test of the quality, but reasonableness as a matter of law, to be determined, not by the strength of that particular mind, . . . but by the legal test in all such inquiries, here as elsewhere. And this is that belief which would be generally entertained by prudent and cautious minds acting with ordinary or average intelligence in such matters on the facts within the knowledge of the prosecuting plaintiff. (Emphasis by court.)

Prosser, Law of Torts, 4th ed. 207 (1971) describes the particular standard of conduct by which a court or jury determines what the reasonable man would have done under the circumstances. The author says:

. . . Under our system of procedure, this question is to be determined in all doubtful cases by the jury, because the public insists that its conduct be judged in part by the man in the street rather than by lawyers, and the jury serves as a shock absorber to cushion the impact of the law. . . .

. . . It is possible to say, in many cases, that the conduct of the individual clearly has or has not conformed to what the community requires, and that no reasonable judgment could reach a contrary conclusion. . . . (Emphasis added.)

,'doubtful' and 'clear' in the mind of the man in the street is the answer in determining whether a plaintiff's conduct is a question of fact for the jury or a question of law for the court.

If we try to determine contributory negligence as a matter of law, based on 'reasonable minds,' we must place ourselves in the position of the man on the street. Then we place these persons in the steps of the plaintiff to determine whether these 'reasonable minds' will agree that the plaintiff is contributorily negligent as a matter of law. This concept falls within the sphere of fiction because we assume as true, something we know to be false or unreal.

A court of review should determine from the facts whether the plaintiff's conduct creates a doubtful or clear question of contributory negligence. If in our minds, the conduct is doubtful, the issue should be submitted to the jury. If it is clear, the issue should be withdrawn from the jury. Courts of review can and have disagreed on whether a plaintiff's conduct is doubtful or clear on the issue of contributory negligence. But each court of review has a duty to see that substantial justice is done as it views the case.

We agree with Proctor v. Waxler, 84 N.M. 361, 365, 503 P.2d 644, 648 (1972), that '. . . in most cases, contributory negligence is almost always a question of fact to be determined at trial, and not one of law.'

We conclude it is doubtful whether the conduct of the plaintiff constituted contributory negligence as a matter of law.

Defendant further contends that where a danger is known or obvious, an injured person might reasonably elect whether he should expose himself to the peril or choose a reasonable alternate.

Plaintiff testified that another access to the trailer park was an automobile passway in the front gate about two and one-half blocks from the stile. This front gate led out to East Main Street. Therefore, defendant says, he was entitled to a directed verdict because plaintiff, with knowledge of the condition of the stile, elected to use the stile instead of the automobile passway.

Defendant's contention fails because defendant never indicated in trial on in his brief that the stile was a known or obvious danger either to children for whom it was built, or for tenants like the plaintiff who commonly used it with knowledge of the defendant. The alternate theory is not applicable.

(B) Trial court did not instruct the jury on impeachment of defendant during plaintiff's rebuttal.

Defendant testified on direct examination that he was first aware of plaintiff's accident five or six weeks after October 29, 1970. Plaintiff's attorney announced during rebuttal that he intended to call as his last rebuttal witness, either a claims man or agent of defendant's insurance company to impeach defendant's testimony by showing that defendant had reported the accident to the agent on November 2, 1970, some four days after the accident. The court heard objections from both sides. After argument of counsel, the trial court felt that the probative value of the impeachment testimony was outweighed by the danger of interjecting a question of insurance into the case. The trial court, at the close of all the evidence, orally said to the jury:

Ladies and Gentlemen, you may accept as a fact that the defendant Don C. Welsh knew on November 2, 1970 that plaintiff W. J. Anderson had had an accident by falling on the stile in question, which is contrary to defendant's direct testimony.

The Liability Accident Notice, which was not allowed in evidence, but made a part of the record, shows that on November 2, 1970, the agent received information about the accident from the defendant.

'The determination of the materiality and relevancy of rebuttal testimony, like evidence offered upon any issue at any other stage of the trial, lies largely within the discretion of the trial court.' Glass v. Stratoflex, Inc., 76 N.M. 595, 600, 417 P.2d 201, 204 (1966).

Defendant may be discredited or impeached by contradictory evidence. U.J.I. 15.4. The evidence offered by plaintiff was contradictory. It was also admissible in evidence for impeachment even though it injected the matter of insurance into the case. Wood v. Dwyer, 85 N.M. 687, 515 P.2d 1291 (Ct.App.1973). Cf. Selgado v. Commercial Warehouse Company, 526 P.2d 430 (Ct.App.), 1974; § 20--4--411, N.M.S.A.1953 ...