LaBarge v. Stewart

Decision Date18 August 1972
Docket NumberNo. 825,825
PartiesKenneth C. LaBARGE, Administrator of the Estate of Catherine F. LaBarge, Deceased, Plaintiff-Appellant, v. William H. STEWART, Defendant-Appellee.
CourtCourt of Appeals of New Mexico
Avelino V. Gutierrez, Albuquerque, for plaintiff-appellant
OPINION

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 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 killing of a human being without malice.

"* * *

"B. Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to felony; or the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection.

"Whoever commits involuntary manslaughter is guilty of a fourth degree felony.'

'If you find from the evidence that the Defendant conducted himself in violation of this statute, you are instructed that such conduct constituted negligence as a matter of law.'

Paragraph 'B' consists of three separate courses of conduct which constitute involuntary manslaughter: One, 'the commission of an unlawful act not amounting to a felony'; two, 'the commission of a lawful act which might produce death, in an unlawful manner'; three, 'the commission of a lawful act which might produce death, without due caution and circumspection.'

In addition to the manslaughter statute, plaintiff requested, and the court gave, instruction No. 4 as follows:

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

"40A--7--3. Negligent use of a weapon.--Negligent use of a weapon consists of:

"A. unlawfully discharging a fire-arm in the proximity of a building, or into any building or vehicle so as to knowingly endanger a person or his property;

"* * * "C. endangering the safety of another or his property by handling or using a firearm or othr (sic) deadly weapon in a negligent manner. * * *.'

'If you find from the evidence that the Defendant conducted himself in violation of this statute, you are instructed that such conduct constituted negligence as a matter of law.'

The plaintiff argues that the court's refusal to give the manslaughter instruction deprived him of '. . . an important theory of his case. . . .' It is true that a party is entitled to have the jury instructed on all correct legal theories of his case which are supported by substantial evidence. Rogers v. Thomas, 81 N.M. 723, 472 P.2d 986 (Ct.App.1970). We do not depart from that rule.

The court's refusal to give the involuntary manslaughter instruction was correct. The second and third courses of conduct set forth in the requested instruction deal with lawful acts. There is no evidence to support a theory of manslaughter by lawful acts. The act involved here, the discharge of the gun, was an unlawful act. To have given the requested instruction, which included acts for which there...

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16 cases
  • Yount v. Johnson
    • United States
    • Court of Appeals of New Mexico
    • March 26, 1996
    ...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 special consider......
  • Terrel v. Duke City Lumber Co., Inc., 878
    • United States
    • Court of Appeals of New Mexico
    • May 22, 1974
    ...is 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 (Ct.App.1972). Defendant's third point for reversal 'THE TRIAL COURT ERRED IN SUBMITTING THE ECONOMIC COMPULSION CLAIM CONCERNING ......
  • May v. Baklini
    • United States
    • Court of Appeals of New Mexico
    • March 16, 1973
    ... ... We also pass the question as 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 (Ct.App.1972) ...         Plaintiff requested an instruction which stated the claimed acts of ... ...
  • Sutherlin v. Fenenga
    • United States
    • Court of Appeals of New Mexico
    • January 24, 1991
    ...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, defendant file......
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