Hamilton v. Doty

• Decision Date: 22 December 1958
• Docket Number: No. 6456,6456
• Citation: 1958 NMSC 139,65 N.M. 270,335 P.2d 1067
• Parties: William HAMILTON, Appellee, v. Harold P. DOTY, d/b/a Harold P. Doty Drilling Company, Employer, and Firemen's Fund Indemnity Company, Insurer, Appellants.
• Court: New Mexico Supreme Court

Page 1067

335 P.2d 1067

65 N.M. 270

William HAMILTON, Appellee, v. Harold P. DOTY, d/b/a Harold P. Doty Drilling Company Employer, and Firemen's Fund Indemnity Company Insurer, Appellants.

No. 6456.

Supreme Court of New Mexico.

Dec. 22, 1958.

Rehearing Denied March 16, 1959.

McAtee, Toulouse & Marchiondo, Albuquerque, for appellants.

Bingham & Klecan, Albuquerque, for appellee.

COMPTON, Justice.

Appellee brought this action for compensation under the provision of the Workmen's Compensation Act for an injury sustained by him while engaged in drilling a water well for his employer, and for an additional 50 per centum for the employer's negligent failure to provide a safety device as defined by Chapter 29, Laws 1955, New Mexico Statutes, for the protection of the workman.

The cause was tried to a jury on the issues, (a) the extent and duration of disability of appellee, if any, resulting from the injury, and (b) whether the employer provided a safety device for the protection of the workman.

The jury returned its verdict for appellee, finding total permanent disability and that the employer negligently failed to provide a safety device in general use in such drilling industry. Judgment was entered on the verdict and the employer and his insurance carrier prosecute this appeal.

The pertinent provisions of the statute read:

'In case an injury to * * * a workman results from his failure * * * to use of a safety device provided by his employer, then the compensation otherwise payable under the Workmen's Compensation Act shall be reduced by fifty (50%) per centum. * * * If an injury to * * * a workman results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the workman, then the compensation otherwise payable under the Workmen's Compensation Act shall be increased by fifty (50%) per centum.'

The water well was being drilled for the City of Gallup. Elmer Ring was the driller in charge. The employer was present and directing the work. Appellee was working as a roughneck. When the well had reached a depth of 2,500 feet, a 'cave-in' occurred which required a 'fishing job' to recover the drilling tools from the hole. In the fishing operation, it was necessary to turn or twist the pipe and this was done by means of torque applied to a rope extending from tongs being operated by appellee to the cathea. As Ring was applying pressure to twist the pipe, the rope broke, causing the tongs to backlash. On the rebound, the tongs, weighing some 175 pounds struck appellee's left knee.

The evidence is clear that in such circumstances, a 5/8 inch cable, with one end clamped to tongs and the other attached to the derrick, is the device generally used in the water well drilling industry for the protection of the workman. Admittedly, no cable was provided by the employer for this purpose; however, appellants strongly contend that a chain was provided by the employer that would serve the same purpose which appellee failed to use. There is evidence pro and con as to whether a chain was provided, but there is no evidence that such a device, if present, was in general use in the drilling industry.

We think the term 'in general use' manifests a clear legislative intent to completely eliminate any contention or controversy as to whether some other device may be substituted. To avoid liability under the Act, the device provided must be one generally used in the particular industry. Apodaca v. Allison & Haney, 57 N.M. 315, 258 P.2d 711. Compare Briggs v. Zia Co., 63 N.M. 148, 315 P.2d 217.

The evidence to sustain the finding as to total permanent disability is challenged, the contention being that appellee's disability should be limited to the knee injury. This question has been settled by the verdict. Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000. There is evidence of a substantial nature that appellee not only suffered an injury to his knee but there is shown a general body impairment resulting therefrom. There is evidence of permanent damage to the quadriceps muscle; a permanent limp which produces a pelvic tilt, resulting in back pains; when he drives a truck or climbs, his leg swells and pains him, the pain extending to his back. Even the employer testified that he could not do heavy manual labor and that is all appellee is qualified to do so shown from the record. We think the evidence adequately supports the verdict. Mathews v. New Mexico Light & Power Co., 46 N.M. 118, 122 P.2d 410; Flippo v. Martin, 52 N.M. 402, 200 P.2d 366.

The driller Ring was permitted to testify that he heard appellee at times complain 'about his legs and also pain in his back.' The point is made that the admission of such evidence is a violation of the hearsay rule. We do not think there was error in this respect. Such declarations are admissible upon the ground...