Jones v. New Mexico School of Mines

• Court: New Mexico Supreme Court
• Writing for the Court: MOISE; CARMODY, Chief Justice, and NOBLE
• Citation: Jones v. New Mexico School of Mines, 75 N.M. 326, 404 P.2d 289 (N.M. 1965)
• Decision Date: 19 July 1965
• Docket Number: No. 7620,7620
• Parties: Marvin A. JONES, Plaintiff-Appellant, v. NEW MEXICO SCHOOL OF MINES, aka New Mexico Institute of Mining and Technology, Defendant-Appellee.

Page 289

404 P.2d 289

75 N.M. 326

Marvin A. JONES, Plaintiff-Appellant, v. NEW MEXICO SCHOOL OF MINES, aka New Mexico Institute of Mining and Technology, Defendant-Appellee.

No. 7620.

Supreme Court of New Mexico.

July 19, 1965.

Melvin L. Robins, Albuquerque, for appellant.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Mary C. Walters, Albuquerque, for appellee.

MOISE, Justice.

At the close of plaintiff's case, a motion for a directed verdict in favor of defendant was sustained, and thereafter judgment dismissing the cause was entered. Plaintiff appealed and here asserts that the court erred in so doing.

We have stated many times that it is error for the court to direct a verdict in favor of a defendant at the close of plaintiff's case unless plaintiff has presented no facts which would support a judgment in his favor. Edwards v. Ross, 72 N.M 38, 380 P.2d 188. When considering the motion, the court must look at the evidence in a light most favorable to plaintiff and must indulge every inference therein in support of plaintiff, disregarding all unfavorable considerations. Gibson v. Helms, 72 N.M. 152, 381 P.2d 429; Hutchison v. Boney, 72 N.M. 194, 382 P.2d 525. If reasonable minds may differ as to the conclusion to be reached under the evidence or premissible inferences to be drawn therefrom, the question is one for the jury and it is error to direct a verdict. Bell v. Ware, 69 N.M. 308, 366 P.2d 706.

We will briefly review the evidence in the light of these rules. On February 1, 1961, plaintiff together with one Reverend E. Y. Folk went to the golf course operated by defendant, where they paid the required green fee to the pro on duty to play golf on the course. Plaintiff had played the course 35 to 50 times over the previous 6 years. After plaintiff's second shot, the ball came to rest at the foot of a steep grassy incline leading to the first green. Before making his approach shot to the green, plaintiff climbed the hill so that he could see where the cup was located (the location of cups on the green are changed peroidically). Having determined where the cup was, plaintiff turned to go back to his ball at the bottom of the hill. After taking a few steps his feet slipped out from under him and he fell to the ground. He rolled or slid to the bottom of the hill, losing consciousness and suffering serious injuries. Plaintiff testified that he was wearing 'ribble' rubber soled shoes and that he did not see any ice on the hill, nor did he know what caused him to slip and fall.

Reverend Folk testified that he did not see plaintiff fall, but saw him lying at the bottom of the hill. Reverend Folk further testified that upon examination of the general area where plaintiff fell he could see one-half to three-quarters of an inch of ice imbedded under the grass on the hill slope and could hear ice crunching under his feet and there was a path like where a deer had been dragged showing where plaintiff slid down the hill. Also, he stated the grass was wet and there was water at the bottom of the hill where plaintiff was lying.

The evidence further showed that there had been a heavy snow on December 8, 1960, whereupon the course had been closed to play until January 26, 1961. In the meantime much effort had been exerted to speed clearing of the course so play could be resumed, including spraying water on the snow. Also, it appears that at some time while snow was present, children had been sledding on the hill where the accident occurred.

After the course was reopened on January 26, it snowed again and the course was closed on January 27. On January 28, it was again opened and eight people played. Fifty-three people played on January 29, 7 on January 30, 9 on January 31 and 10 on February 1, the date of plaintiff's injury. No one other than plaintiff had slipped or fallen so far as the pro was aware.

In De Baca v. Kahn, 49 N.M. 225, 232, 161 P.2d 630, we stated the rule applicable between a store owner and his customer in the follwoing language:

'We are committed to the view that the proprietor of a store is not an insurer against accidents to his customers but is bound only to exercise reasonable care to keep his premises, which the public is tacitly invited to use, safe for that purpose. Furthermore, the mere fact that an invitee falls on the floor of a store does not of itself raise a presumption of negligence on the part of the owner. What constitutes due care of an inviter is always to be determined by the circumstances and conditions surrounding the transaction under consideration.

'The measure of defendant's duty is that of reasonable care; he was bound to exercise reasonable care to keep his premises safe for the ingress, progress and egress of customers and other authorized visitors. See Mona v. Erion, [223 App.Div. 526, 228 N.Y.S. 533], supra; Weller v. Consolidated Gas Co. 198 N.Y. 98, 91 N.E. 286, 139 Am.St.Rep. 798; Cook v. Great Atlantic & Pacific Tea Co., 244 App.Div. 63, 278 N.Y.S. 777.'

In Mahoney v. J. C. Penney Company, 71 N.M. 244, 260, 377 P.2d 663, 674, we find the rule stated thus:

'* * * What is required is that the inviter do what a reasonably prudent person would do under the particular circumstances, either to warn his invitees of any known or foreseeable danger, or to keep the premises reasonably safe in the absence of such warning. This, after all, is not a novel approach to tort liability.'

This rule, together with the further consideration to the effect that a store owner is not the insurer or guarantor of the safety of his customers or business invitees, has been repeated by us many times. See, e. g., Hallett v. Furr's, Inc., 71 N.M. 377, 378 P.2d 613.

Although we are here considering the duty of the operator of a golf course to its patrons, and not of a merchant to his customers, we see no reason for the application of a different rule. In the only case involving an injury on a golf course to which our attention has been called, we find support for this conclusion. In Farfour v. Mimosa Golf Club, 240 N.C. 159, 81 S.E.2d 375, 378, it is said:

'As to the owner, the general rule is that he is not the insurer of the safety of patrons, but he owes to them only what, under particular circumstances is 'ordinary' or 'reasonable' care.'

To the same general effect are the cases involving the duty of operators of places of amusement to their patrons generally. See annotation in 16 A.L.R.2d 912, 916.

We must now determine whether reasonable minds could differ on the question of whether or not defendant was negligent under the facts and circumstances related above. We conclude, after weighing the facts as required by the rules set forth above, together with our slip and fall cases, that the court erred in directing a verdict. Although Farfour v. Mimosa...