Giese v. Mountain States Tel. & Tel. Co.

• Citation: 1962 NMSC 125,376 P.2d 24,71 N.M. 70
• Decision Date: 17 September 1962
• Docket Number: No. 7150,7150
• Parties: Edna GIESE, Plaintiff-Appellant, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 24

376 P.2d 24

71 N.M. 70

Edna GIESE, Plaintiff-Appellant, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a

corporation, Defendant-Appellee.

No. 7150.

Supreme Court of New Mexico.

Sept. 17, 1962.

Rehearing Denied Nov. 26, 1962.

Thomas B. Forbis, James M. H. Cullender, Roswell, for appellants.

Atwood & Malone, Bob F. Turner, Roswell, for appellee.

COMPTON, Chief Justice.

This is an appeal from a summary judgment for the defendant in a personal injury action as the result of a sidewalk accident.

Appellant, plaintiff below, brought this action against appellee, defendant below, alleging that the latter wrongfully constructed an obstruction on the sidewalk adjacent to appellee's place of business and, that while appellant was walking on the sidewalk when it was crowded with other people, she tripped over the obstruction which was not plainly visible, fell and was injured. Appellee denied the allegation as to the obstruction, affirmatively alleged contributory negligence, and then moved for summary judgment. Appellant also moved for summary judgment. After a hearing on the legal propositions of negligence and contributory negligence and consideration of the pleadings, affidavits, and exhibits, appellee's motion was granted.

It should be noted here that where both parties moved for summary judgment alleging the absence of a material fact issue, it was nevertheless the duty of the trial court to independently determine whether a genuine issue of fact was actually present. Harp v. Gourley, 68 N.M. 162, 359 P.2d 942.

The basis of this appeal is that the trial court granted summary judgment for appellee without affording appellant an opportunity to be heard on the facts and law of the case, and that the pleadings, affidavits and deposition raised genuine issues of material fact as to the negligence of appellee and contributory negligence of appellant. More specifically, it appears to be appellant's contention that she was entitled to have a jury decide whether the appellee negligently constructed and maintained a dangerous condition on what appeared to be a public sidewalk and whether she had a clear view of the obstruction before she tripped and fell.

With respect to the claim of lack of opportunity to be heard on the facts and law before granting summary judgment, it is found without merit. At the hearing on appellee's motion, of which appellant had timely notice, she was fully apprised of appellee's answer, affidavits and exhibits and had every opportunity at the time of the hearing to present her arguments and authorities in opposition thereto. At the hearing the court had before it the pleadings, the deposition of appellant and affidavits of appellee. Attached to the affidavits as exhibits were a photograph of the curb and a land survey plat showing the portions of the sidewalk owned by appellee and those portions dedicated to public use. Appellant was granted additional time in which to obtain further facts concerning the property line, at the expiration of which time it was stipulated that the line as set forth in appellee's survey was correct. The order of the trial court sustaining appellee's motion for summary judgment specifically set forth that it was based upon the hearing and the court's consideration of the deposition, pleadings, affidavits, exhibits and motions of both parties.

The following facts before the trial court were not in dispute. Appellant was walking north on the east side of Richardson Street adjacent to appellee's place of business in Roswell, New Mexico. The frontage of appellee's property is 100 feet and is bordered by a concrete curbing 3/10ths of one foot in height, all of which curbing is 1/10th of a foot within appellee's property line. In the center of the property is a concrete curb running parallel to appellee's building which borders an open drainage ditch and runs from the front of the building under the sidewalk to the street. This curb is the same height as the other curbing at the edge of the sidewalk and serves as a guard to prevent persons from stepping into the open part of the drainage ditch on appellee's property. The sidewalk to the south of this drainage curb is 6/10ths of a foot wider than the sidewalk next to this curb or the sidewalk north of it. While appellant was thus walking in a northerly direction on the wider portion of the sidewalk, and in order to avoid other people walking in both directions thereon, she moved to her right and tripped over the curb at the point where the sidewalk narrows and the drainage curb begins.

The deposition of appellant disclosed that she had no intention of entering appellee's place of business but was proceeding to the post office beyond; that she had previously used the street to go to the post office but did not know how many times; that it was a clear, sunny morning and she was looking straight ahead as she moved over to her right; that her vision was not blocked or obscured by anyone in front of her or between her and the concrete curb, and that there was nothing to prevent her from seeing the curb had she looked down. In her complaint, however, and in a later affidavit, appellant stated that she tripped and fell over the curb which she had not been able to see because of the people on the walk. This was directly opposed to her testimony in the deposition when she was subject to cross-examination by her own counsel.

The affidavits and exhibits of appellee asserted that the curb had been constructed in 1954, at least six years prior to this action; that appellee had no knowledge of any previous...