Dillard v. Southwestern Public Service Co.

• Decision Date: 30 September 1963
• Docket Number: No. 7255,7255
• Citation: 1963 NMSC 179,73 N.M. 40,385 P.2d 564
• Parties: Audie DILLARD, Plaintiff-Appellant, v. SOUTHWESTERN PUBLIC SERVICE COMPANY, a corporation, Mrs. Bertie Noland Price and Traders and General Insurance Company, a corporation, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 564

385 P.2d 564

73 N.M. 40

Audie DILLARD, Plaintiff-Appellant, v. SOUTHWESTERN PUBLIC SERVICE COMPANY, a corporation, Mrs Bertie Noland Price and Traders and General Insurance Company, a corporation Defendants-Appellees.

No. 7255.

Supreme Court of New Mexico.

Sept. 30, 1963.

Easley & Pyatt, Hobbs, for appellant.

Hervey, Dow & Hinkle, Harold L. Hensley, Jr., Roswell, Merrill Norton, Lovington, Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, Tex., for appellees.

MOISE, Justice.

Plaintiff appeals from summary judgment for defendant utility in a case where plaintiff was injured when the boom on a well servicing truck being operated under plaintiff's direction and control struck a high voltage line of defendant utility. We need not consider any question concerning any of the other named defendants.

The record in the case discloses the following facts which were presented by the pleadings, affidavits and depositions, available to the court in considering the motion for summary judgment of the defendant utility.

On April 17, 1960, plaintiff was in charge of servicing an oil well in Lea County allegedly operated by the defendant, Price. Plaintiff was an employee of L. V. Pennington Well Service, and defendant Traders and General Insurance Company was the employer's workmen's compensation insurance carrier. After completion of the work on the well, plaintiff and one Al Collins, the driver of the servicing truck, were engaged in lowering the boom or mast attached thereto. The mast, when extended, was 75 feet long and telescoped down to 37 feet, and then could be laid horizontally onto the truck when not in use. Plaintiff and Collins were attempting to lower the mast over the cab of the truck to the horizontal position when the accident occurred. Plaintiff was handling a line attached to the mast and a drum brake so that the dropping of the mast could be controlled and not injure the truck or driver. The method of lowering the mast was to drive the truck forward and stop suddenly so that the mast would overbalance and drop forward over the cab. Plaintiff, working the cable drum, would slow the fall with the line attached to the drum brake. The first attempt to overbalance the mast failed, and on the second attempt, the truck drove into the high voltage line of defendant utility. The current passed down the mast, injuring plaintiff.

The utility line was 34.87 feet above the ground at the point where it was hit, and the well was 67 feet distant. The well was located in open range land. The power line was open and visible, uninsulated, and carried 115,000 volts. The proof is uncontroverted that the minimum clearance required by the national safety code was 29.86 feet, and that no insulated material was manufactured or used to carry a voltage of this magnitude.

In his response to the motion for summary judgment of defendant utility, the plaintiff asserted that the facts established did not entitle defendant utility to a judgment of dismissal as a matter of law. Also, that since defendant utility had notice of the doing of oil field servicing work in the vicinity of their high line, there existed an issue of fact precluding summary judgment under Sec. 21-1-1(56), N.M.S.A.1953.

The documents before the court at the summary judgment hearing established that the well serviced by plaintiff had been in existence since its completion in 1951; that there were thirteen additional wells in the section, having completion dates from 1931 to 1960, and further, that wells of the type serviced by plaintiff at the date of his injury must be serviced with equipment like that in use by plaintiff at least every two or three weeks. Also, it must be accepted as true that the customary way of lowering a mast of the type used by plaintiff was that followed at the time of the accident.

Keeping in mind the facts as outlined above, we are first called upon to determine if there were material issues of fact remaining unresolved. Plaintiff asserts that the question of whether or not the defendant utility was negligent presented a question of fact for the jury and accordingly the court erred in granting summary judgment.

There is no disagreement between the parties concerning the rules applicable in passing on motions for summary judgment. The cases cited and relied on were all discussed in our recent decision in Coca v. Arceo, 71 N.M. 186, 376 P.2d 970, from which we copy the following pertinent language:

'We do not mean to imply, in any sense, that a case of negligence has been made out by the plaintiff--we merely repeat the conclusion so often stated by us that, where an appeal is taken from a summary judgment, this court will review the testimony in the most favorable aspect it will bear in support of plaintiff's claim of the right to present the merits of his case to the factfinder. McLain v. Haley, 1949, 53 N.M. 327, 207 P.2d 1013; Ginn v. MacAluso, 1957, 62 N.M. 375, 310 P.2d 1034; Sooner Pipe & Supply Corp. v. Doerrie, 1961, 69 N.M. 78, 364 P.2d 138; Hewitt-Robins, Inc. v. Lea County Sand & Gravel, Inc., 1962, 70 N.M. 144, 371 P.2d 795. Litigants are entitled to the right of trial where there is the slightest doubt as to the facts. Agnew v. Libby, 1949, 53 N.M. 56, 201 P.2d 775; Michelson v. House, 1950, 54 N.M. 197, 218 P.2d 861. In summary judgment, the burden is on the moving party to clearly establish that there is no factual issue to be determined, and the burden is not upon the opposing party to prove a prima facie case. * * *'

Plaintiff places his principal reliance on the following language used by us in Hewitt-Robins, Inc. v. Lea County Sand & Gravel, Inc., 70 N.M. 144, 148, 371 P.2d 795, 797:

'Summary judgment under the provisions of rule 56(c) (Sec. 21-1-1(56)(c), N.M.S.A., 1953 Comp.) is only proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. It is not a substitute for a trial. Zengerle v. Commonwealth Insurance Co. of N.Y., 1956, 60 N.M. 379, 291 P.2d 1099; Michelson v. House, 1950, 54 N.M. 197, 218 P.2d 861; and Ballard v. Markey, 1959, 66 N.M. 265, 346 P.2d 1045. The party against whom a motion for summary judgment is directed is entitled to have all reasonable inferences construed in his favor. Agnew v. Libby, 1949, 53 N.M. 56, 201 P.2d 775. Actually, even in a case where the basic facts are undisputed, it is frequently possible that equally logical, but conflicting, inferences may be drawn from these facts which would preclude the granting of summary judgment. Sarkes Tarzian, Inc. v. United States, (7th Cir.1957), 240 F.2d 467; United States v. Dollar, (9th Cir.1952), 196 F.2d 551; and Braniff v. Jackson Ave.-Gretna Ferry, Inc., (5th Cir.1960), 280 F.2d 523.' (Emphasis supplied)

It is plaintiff's position that an inference of negligence is possible under the admitted facts. We do not agree. A discussion of the duties of the defendant utility is in order to explain the reasons for our conclusion.

In Crespin v. Albuquerque Gas & Electric Co., 39 N.M. 473, 50 P.2d 259, we recognized the correct measure of care owed by one handling high-powered electric current to be the exercise of a degree of care in the construction and maintenance of its lines 'commensurate with the danger to be apprehended * * * but they are not insurers against accidents or injuries.'

To the same effect are Mares v. New Mexico Public Service Co., 42 N.M. 473, 82 P.2d 257, and Caraglio v. Frontier Power Co. (10 Cor., 1951), 192 F.2d 175.

Recognizing the rule to be as stated, we examine the undisputed facts to determine if an inference of negligence on the part of defendant utility may be drawn and the right to summary judgment thereby precluded.

In 69 A.L.R.2d 93 is found an annotation on the subject of 'Liability of electric power company for injury or death resulting from contact of crane, derrick, or other movable machine with electric line.' The applicable rule, well supported by cases appearing in the note, is summarized on page 97, as follows:

'In order to hold a power company liable for injury or death resulting from an accidental transmission of electricity from its wire through a movable machine, it must be shown that the accident was the result of negligence on the part of such company.

'This is a question for the jury if different inferences may be drawn from the facts, but may be a question of law for the court to decide if the facts are clear or...