LaBarge v. Stewart, 825

Docket NºNo. 825
Citation501 P.2d 666, 1972 NMCA 119, 84 N.M. 222
Case DateAugust 18, 1972
CourtCourt of Appeals of New Mexico

Page 666

501 P.2d 666
84 N.M. 222
Kenneth C. LaBARGE, Administrator of the Estate of Catherine
F. LaBarge, Deceased, Plaintiff-Appellant,
William H. STEWART, Defendant-Appellee.
No. 825.
Court of Appeals of New Mexico.
Aug. 18, 1972.
Rehearing denied Sept. 11, 1972.
Certiorari denied Oct. 4, 1972.

[84 NM 223]

Page 667

Avelino V. Gutierrez, Albuquerque, for plaintiff-appellant.

K. Gil Shaffer, Clarence R. Bass, Shaffer, Butt & Bass, Albuquerque, for defendant-appellee.


COWAN, Judge.

This is a suit for the alleged wrongful death of decedent, Cathy LaBarge, brought by her father, Kenneth C. LaBarge, administrator of her estate. Plaintiff appeals from a judgment in favor of defendant entered pursuant to a jury verdict.

We affirm.

On Saturday, October 26, 1968, at about 7:30 p.m., decedent Cathy LaBarge, age 15, with her boyfriend Richard Roybal and his cousin Ronnie, visited the home of her friend Debra Johnston. Debra lived with her younger sister, Karen, and her older stepbrother, the defendant William Stewart, age 16. The parents had gone to Santa Fe for the evening leaving the three children alone. For protection the defendant had loaded a .22 Smith & Wesson 'K' Model revolver which he had ready for use when Cathy came to the door.

Debra, Karen and the defendant went outside to visit with their guests. Cathy asked defendant for the revolver, which he had unloaded. He handed it to her. She pointed it to her head and pulled the trigger several times. In reprimand Debra slapped her and took the gun away. Cathy was warned by Richard, Ronnie and Debra not to play with or point the gun.

Cathy asked the defendant how Russian roulette was played. When he told her, she asked him to put a bullet in the gun. Defendant did as Cathy requested. He told her so, and showed her the bullet in the gun. Thinking the bullet was opposite the firing pin, and that he could safely pull the trigger five times the defendant pointed the gun barrel downward about one inch from Cathy's head, and pulled the trigger with 'medium fast' rapidity. At the time, Cathy's body was turned towards the defendant, and the gun was about six inches from her eyes. The gun fired the fourth time the defendant pulled the trigger.

Dr. Mora, a neurosurgeon, examined Cathy at the hospital. He testified that the bullet entered just a little above the point of the left ear. Its path was downward and into the brain stem where the spinal cord enters the skull. Cathy died shortly after the examination.

By his first point plaintiff raises the question of assumption of risk, asserting that the court erred in instructing on the subject because the defense is no longer available in New Mexico. To support his [84 NM 224]

Page 668

position plaintiff relies on Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1971). Plaintiff misconstrues the effect of Williamson which abolishes the defense of assumption of risk only as to 'all cases tried hereafter.' The case at bar was tried in May of 1971, prior to the Williamson decision and is thus not affected thereby. See Taos Ski Valley, Inc. v. Elliott, 83 N.M. 763, 497 P.2d 974 (1972). There was substantial evidence to support the instruction on assumption of risk and the court did not err in giving it.

Under his second point plaintiff urges error on the part of the trial court in submitting the issue of contributory negligence to the jury because of lack of substantial evidence to support it. We see no reason to set forth the evidence in greater detail than has already been done. Although some of the evidence was conflicting, the evidence raises a factual question as to whether Cathy unreasonably exposed herself to danger which she had reason to know about, and a factual question as to whether her conduct fell below the standard to which she, as a 15 year old, should conform in order to protect herself from harm. The entire case was summed up by the foreman of the jury when he announced in open court, after the jury had arrived at a verdict, that '. . . we did want to make this as a statement that both children entered into a dangerous play. . . .' The evidence supported instructions on both assumption of risk and contributory negligence.

Under his third point the plaintiff argues that the court erred in refusing to instruct the jury that the defendant's violation of the statute prohibiting involuntary manslaughter was negligence as a matter of law. The plaintiff's requested instruction No. 6 (N.M. U.J.I. 11.1) was:

'There was in force in the State at the time of the occurrence in question a certain statute which provided that:

"40A--2--3. Manslaughter.--Manslaughter is the unlawful...

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17 cases
  • Yount v. Johnson, 15792
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 26, 1996
    ...applied the standard to a teenager engaged in the reckless conduct of playing Russian roulette with a loaded gun. See LaBarge v. Stewart, 84 N.M. 222, 225-26, 501 P.2d 666, 669-70 (Ct.App.), cert. denied, 84 N.M. 219, 501 P.2d 663 7. Our courts recognize that minors need some degree of spec......
  • Terrel v. Duke City Lumber Co., Inc., 878
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 22, 1974 only entitled to have a jury instructed on correct legal theories which are supported by substantial evidence. La Barge v. Stewart, 84 N.M. 222, 501 P.2d 666 Defendant's third point for reversal is: 'THE TRIAL COURT ERRED IN SUBMITTING THE ECONOMIC COMPULSION CLAIM CONCERNING[86 N.M. 428......
  • May v. Baklini, 994
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 16, 1973 to whether the requested instructions covered elements of the statutes for which there was no evidence. See LaBarge v. Stewart, 84 N.M. 222, 501 P.2d 666 Plaintiff requested an instruction which stated the claimed acts of negligence on the part of defendants. This instruction, based on N......
  • Sutherlin v. Fenenga, s. 10510
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 24, 1991
    ...similar language contained in UJI Civ. 13-1830, which was given by the court, we find the error to be harmless. See LaBarge v. Stewart, 84 N.M. 222, 501 P.2d 666 (Ct.App.1972) (court may properly refuse an instruction where it is repetitious in (D) Evidence of Reading Prior to trial, defend......
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