Johnson v. City of Santa F?., 3437.
| Decision Date | 11 July 1930 |
| Docket Number | No. 3437.,3437. |
| Parties | JOHNSONv.CITY OF SANTA FÉ. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Trial court's construction of ambiguous pleading will be followed by Supreme Court.
Supreme Court will follow trial court's construction of an ambiguous pleading.
Demurrer is not proper mode of attacking pleading for indefiniteness and uncertainty.
Demurrer not proper mode of attacking a pleading for indefiniteness and uncertainty.
Plaintiff suing for injuries resulting from dangerous condition of street under improvement by city through its agents need not prove notice of such condition.
When a street's dangerous condition is caused by improvement being made by city through its agents or servants, unnecessary, in action for personal injury, to allege or prove notice of such condition.
Plaintiff's negligence and defendant's contributory negligence held for jury under evidence in action for injuries sustained when plaintiff fell into open sewer trench in street.
Evidence examined and held not, as matter of law, to exclude negligence or establish contributory negligence.
$10,000 to lady 60 years old having expectancy of 14 years, reducing earning capacity from $150 to $20 per month, for permanent loss of earning capacity resulting from injuries, held not excessive.
Damages for permanent loss of earning capacity held not excessive.
Evidence in action for injuries sustained when plaintiff fell into sewer trench excavated by city when making street improvements held to support conclusion that injuries were permanent.
Evidence held substantially to support conclusion of permanency of injury.
Appeal from District Court, Santa Fé County; Holloman, Judge.
Action by Margaret Johnson against the City of Santa Fé, a municipal corporation, and another. Judgment for plaintiff, and defendant named appeals.
Affirmed, and cause remanded.
Negligence held for jury under evidence in action for injuries sustained when plaintiff fell into open sewer trench in street.
M. W. Hamilton, of Santa Fé, for appellant.
E. P. Davies and W. A. Gillenwater, both of Santa Fé, for appellee.
In an action for personal injuries against James Collier and the city of Santa Fé, appellee, plaintiff below, was awarded $10,000 damages upon findings and conclusions by the trial court. While going from her home to attend mass in the early morning, and in the dark, proceeding along Kentucky avenue in the city of Santa Fé, she fell into an open sewer trench excavated by defendant Collier for the city of Santa Fé. No service was had upon defendant Collier, and the judgment is against the city alone.
Appellant (the city of Santa Fé) first objects to the overruling of its demurrer to the complaint. The argument here is based upon the premise that defendant Collier was an independent contractor, and that, in that situation, the allegations of the complaint failed to show the violation of any duty resting upon the city, and particularly failed to show that the city had notice of any dangerous condition in the street.
[1][2][3] While it did develop at the trial that Collier was an independent contractor, the fact does not appear upon the face of the complaint; the allegation being that he was “employed” by the city to construct the sewer. It may be true, as appellant argues, that this allegation left it uncertain as to whether Collier was the agent or servant of the city, or whether he was an independent contractor. Yet, if the trial court construed this as an allegation that defendant Collier was the agent or servant of the city, this court, under the well established rule, would follow that construction. Demurrer is not the proper mode of attacking an allegation for indefiniteness and uncertainty. Upon the theory that Collier was the city's agent or servant, his knowledge of a dangerous condition would be the knowledge of the city, and it would be unnecessary to allege or prove actual knowledge. This objection must be overruled.
[4] Appellant does not invoke a general review of the evidence, but calls attention to certain testimony elicited from appellee, to establish its contentions that the court erred in holding appellant guilty of negligence, and in holding appellee not guilty of contributory negligence. Appellee admitted that for several days she had observed the excavating machine approaching her home, digging its way along the street in question, and that on the preceding two...
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