Cupps v. Southwestern Public Service Co.

• Citation: 91 N.M. 639,1978 NMCA 39,578 P.2d 340
• Decision Date: 04 April 1978
• Docket Number: No. 3043,3043
• Parties: Raymond V. CUPPS, Administrator of the Estate of David Lynn Cupps, Deceased, and Raymond V. Cupps, as Personal Representative of the Estate of David Lynn Cupps, Deceased, Plaintiff-Appellant, v. SOUTHWESTERN PUBLIC SERVICE COMPANY, a corporation, and Graves Brothers, Inc., a New Mexico Corporation, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 340

578 P.2d 340

91 N.M. 639

Raymond V. CUPPS, Administrator of the Estate of David Lynn

Cupps, Deceased, and Raymond V. Cupps, as Personal

Representative of the Estate of David

Lynn Cupps, Deceased, Plaintiff-Appellant, v. SOUTHWESTERN PUBLIC SERVICE COMPANY, a corporation, and Graves Brothers, Inc., a New Mexico Corporation,

Defendants-Appellees.

No. 3043.

Court of Appeals of New Mexico.

April 4, 1978.

Writ of Certiorari Denied May 9, 1978.

[91 NM 640] Robert I. Waldman, Roswell, for plaintiff-appellant.

Harold L. Hensley, Jr., Hinkle Cox, Eaton, Coffield & Hensley, Roswell, and Mac W. Hancock, III, Gibson, Ochsner, Adkins, Harlan & Hankins, Amarillo, Tex., for Southwestern Public Service Co.

William W. Bivins, Bivins, Weinbrenner & Reagan, Las Cruces, for Graves Bros., Inc.

OPINION

LOPEZ, Judge.

The plaintiff-appellant filed a wrongful death action against the defendant-appellee, Southwestern Public Service Company (Southwestern) and the defendant-appellee Graves Brothers, Inc., (Graves) to recover damages for the death of his son. Summary judgment was granted by the trial court in favor of the defendants-appellees. We affirm.

The appellant presents three points on appeal: (1) material issues exist relative to the negligence of the defendant, Southwestern Public Service Company, due to the low clearance of its high voltage electric wires; (2) the defendant Graves, as a land owner, owed a duty to the decedent to provide a safe place to work and this duty was breached; and (3) decedent was not contributorially negligent as a matter of law; rather there are issues of material fact relating to contributory negligence.

The record reveals the following pertinent facts: Appellant's son, David L. Cupps had finished loading his employer's truck with hay purchased by his employer from defendant Graves. While the decedent was covering the hay with a tarpaulin, he came in contact with wires carrying 7,200 volts of electricity, which contact resulted in his death by electrocution. The electric wires were owned, operated and maintained by the defendant, Southwestern. At the point where decedent came in contact with the power line, the clearance of the wires was 16' 9" from the ground, and passed over an entrance to the garage and barn on defendant Graves' farm. The decedent was warned numerous times by four separate persons about the existence of the electric lines in question and the danger posed to one coming in close proximity with them. Furthermore, the decedent had been instructed specifically to back his tractor trailer away from those lines in order that the hay could be covered without coming in contact with the lines. Further, although the decedent had plenty of room to park his truck without being close to the lines, the decedent himself parked the truck before commencing to put the tarp on the trailer, leaving a portion of the cab under the wires. When the decedent so parked the lines were clearly visible to him. The decedent should have understood the warnings about the lines and the location of the lines when he came in contact with them.

The contributory negligence of the decedent.

Appellant's Point III is dispositive of this appeal. The appellant argues that the court erred in concluding that the decedent was contributorially negligent as a matter of law and that such negligence bars recovery in this case. This being a review of a summary judgment, we are...