Le Doux v. Martinez

• Decision Date: 12 March 1953
• Docket Number: No. 5537,5537
• Parties: LE DOUX et ux. v. MARTINEZ et al.
• Court: New Mexico Supreme Court

Page 685

254 P.2d 685

57 N.M. 86

LE DOUX et ux. v. MARTINEZ et al.

No. 5537.

Supreme Court of New Mexico.

March 12, 1953.

Harry L. Bigbee and Donnan Stephenson, Santa Fe, for appellants.

F. A. Catron and Thomas B. Catron III, Santa Fe, for appellee.

COMPTON, Justice.

We are called on to construe our wrongful death statute, Sec. 24-104, New Mexico Statutes Annotated, 1941 Comp., as amended Ch. 125, Sec. 1, L.1947. The part material to a decision, reads:

'Whenever any person shall die from any injury resulting from, or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car, or train of cars, or of any driver of any state (stage) coach or other public conveyance, while in charge of the same as driver * * * the corporation, individual or individuals, in whose employ any such officer, agent, servant, employee, engineer or driver, shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stage coach, or other public conveyance, at the time any injury is received, * * * shall forfeit and pay for every person or passenger so dying, the sum of ten thousand dollars ($10,000), which may be sued and recovered * * *.'

On August 9, 1951, Pete Sanchez took his nephew Anthony Joe LeDoux, a child of the age of two years and eight months, for a motor ride in his truck. Shortly thereafter, Sanchez returned the child and parked in the four hundred block on San Francisco Street, across from the LeDoux residence, the truck facing east on the south side of San Francisco Street, the LeDoux apartments being on the north side. In crossing the street to his home, the child was run over and killed by a taxicab owned by appellee, Joe Martinez, doing business as City Cab Company, and operated by his agent Jose Victor Chavez.

The complaint advances three theories for a recovery. Appellants allege that the death of the child resulted from the negligence and unskillfulness of appellee's driver in the operation of the cab; that appellee was negligent in employing a young and inexperienced driver in the operation of the business; and the negligence of appellee generally as a proximate cause of the injuries. The latter charges, however, are abandoned. The wrongful death statute is now the basis for recovery.

Issue was joined by a general denial. As a first separate defense, appellee pleaded the contributory negligence of appellants as a direct and proximate cause of the injuries to and the death of the child, in permitting the child on the street at the time and place of the accident. As a second separate defense, appellee pleaded the contributory negligence of the child as a direct and proximate cause of the injuries resulting in its death. The cause was tried to the jury, which returned its verdict in favor of appellee. To test the correctness of the action of the court, the cause is brought here for review.

The trial court instructed the jury on imputed negligence, as follows:

'21. You are instructed that if the plaintiffs in this case entrusted their child Anthony Joe LeDoux to the care and custody of his uncle, Pete Sanchez, on the occasion here involved, and if you further believe from a preponderance of the evidence that the accident to and injuries sustained by the child were caused by any negligent act on the part of said Pete Sanchez, while said child was in his care and custody, and which act contributed to the accident and injury to the child as a proximate cause thereof, then even though you should believe and find that Joe Victor Chavez was negligent in the operation of the taxicab being driven by him, at the time and place in question, plaintiffs cannot recover and your verdict should be for the defendant. The negligent act or acts of the uncle Pete Sanchez, under such circumstances are chargeable to the parents, or parent, who entrusted the child to the care of said Sanchez and they cannot be permitted to benefit or profit by their own wrong, if such there was.'

The point is made by appellants that the contributory negligence of Pete Sanchez was not an issue. The contention has merit. There was no basis for the instruction. The pleadings as framed limit the issue of contributory negligence to appellants and the child. Further:

'It is a general rule that specific averments in a pleading must be given precedence over general averments regarding the same matter. They are deemed to explain, limit, and control the general allegations. This, general averments of negligence followed by enumeration of the specific acts of negligence relied upon are controlled by such averments of specific acts, and the pleader is confined in his proof within the limits of the specification of his particular act.' 41 Am.Jur., Pleading, Sec. 33.

See Couch's Adm'r. v. Black, 301 Ky. 24, 190 S.W.2d 681; Hartley v. A. I. Rodd Lumber Co., 282 Mich. 652, 276 N.W. 712; Gentry v. Betty Lou Bakeries, 171 Tenn. 20, 100 S.W.2d 230; Gulf States Utilities Co. v. Mitchell, Tex.Civ.App., 104 S.W.2d 652. Moreover, the imputation of contributory negligence is an affirmative defense and must be specifically pleaded. Campagna v. Market Street Ry. Co., 24 Cal.2d 304, 149 P.2d 281.

It is our conclusion that the instruction presented a false issue, one substantially different from that alleged, and was, therefore, erroneous.

The refusal of the court to instruct as to the standard of care required of the cab driver, is assigned as error. It is undisputed that San Francisco Street in the area where the injury occurred, was in a residential district. The street was only twenty-two feet wide and the sidewalks about three feet wide. The cab driver knew these facts, and that children frequently played therein. As to the degree of care to be exercised under such circumstances, appellants tendered the following instructions:

'5. You are instructed that a child's age and capacity to appreciate peril, where such facts are known or should be known to one who comes in contact with the child, may be considered in determining whether such person is negligent toward the child. More care must be exercised toward children than toward persons of mature years. Children of tender years are entitled to care proportionate to their inability...