Maestas v. Alameda Cattle Co. Inc.

• Decision Date: 03 August 1932
• Docket Number: No. 3653.,3653.
• Citation: 36 N.M. 323,14 P.2d 733
• Parties: MAESTASv.ALAMEDA CATTLE CO., Inc.
• Court: New Mexico Supreme Court

36 N.M. 323

14 P.2d 733

MAESTAS

v.ALAMEDA CATTLE CO., Inc.

No. 3653.

Supreme Court of New Mexico.

Aug. 3, 1932.Rehearing Denied Oct. 11, 1932.

Syllabus by the Court.

In servant's action for injury to hand, allegations of complaint held sufficient to set up master's duty to furnish guard for cogwheels, breach of duty, and injury (Comp. St. 1929, § 105-404).

“Proximate cause” is that which, in natural and continued sequence, unbroken by any efficient, intervening cause, produces result complained of.

In servant's action for injury to hand, evidence disclosing that hand was caught while plaintiff was oiling unguarded cogwheels held admissible under allegations of complaint.

In action for injury to servant's hand when caught in unguarded cogwheels, testimony disclosing servant's defective vision held admissible as bearing on appreciation of danger.

In servant's action for injury to hand, testimony disclosing servant, when injured, was using tomato can furnished by master to oil unguarded cogwheels, held admissible.

Failure to properly limit purpose and effect of evidence is not reversible error in absence of request.

Employee's assumption of risk is question for jury where evidence admits of reasonable differences of opinion.

Employee's contributory negligence is question for jury where evidence admits of reasonable differences of opinion.

On Motion for Rehearing.

Test in determining whether master's failure to guard against particular acts of employees, constitutes negligence, is whether particular injury was reasonably to have been anticipated.

Master's duty to furnish safe place to work and safe appliances, includes duty to guard machinery where safety requires.

Where sufficiency of complaint is challenged for first time after plaintiff has rested his case, court should endeavor to sustain complaint, if by taking liberal view, its averments will support judgment.

Reasonable interpretation of pleadings by trial court is binding on appeal.

1. Allegations of complaint which defendant denied generally and did not attack legally until close of plaintiff's case in chief, held to set up duty of master to furnish guard for cogwheels, breach of such duty, and injury proximately resulting.

2. Proximate cause defined.

3. Proof that, while oiling unguarded cogwheels, plaintiff's hand was caught and injured, is admissible under allegations that plaintiff was required to oil machinery with unguarded cogwheels and that, when he was in course of his employment, his hand was caught in cogwheels and injured.

4. In action by servant for injury by unsafe machinery, proof of alleged fact of servant's defective vision was admissible as bearing on appreciation of danger, though complaint did not predicate negligence on it.

5. Unalleged fact that servant was, when injured, using tomato can furnished by master to oil unguarded cogwheels, admissible as circumstance of injury, though master's failure to furnish proper oil can was not relied on as negligence.

6. Court may limit purpose and effect of evidence, but failure so to do is not reversible error in absence of request by counsel.

7. Where evidence admits of reasonable difference of opinion as to assumption of risk, it is a question for the jury.

8. Where evidence admits of reasonable difference of opinion as to contributory negligence, it is a question for the jury.

Appeal from District Court, Sandoval County; Helmick, Judge.

Action by Trancito Maestas against the Alameda Cattle Company, Inc. Judgment for the plaintiff, and the defendant appeals.

Affirmed and cause remanded.

Reasonable interpretation of pleadings and proofs made by trial court is controlling on appeal.

Raymond R. Ryan, of Albuquerque, for appellant.

Thomas J. Mabry, of Albuquerque, for appellee.

WATSON, J.

This appeal is from a judgment upon a verdict awarding damages in a common-law action for negligence of a master, resulting in personal injury to a servant.

Defendant's answer is a general denial. At the close of plaintiff's case in chief, defendant demurred to the complaint and moved to dismiss it for failure to state facts constituting a cause of action; moved to strike certain testimony as not admissible under the complaint as a basis of recovery; moved to strike certain other testimony on another ground; and moved for a directed verdict. These motions having been overruled, defendant elected to stand on them, introduced no evidence, and did nothing further but except to the instructions.

[1] Appellant's first proposition here is that the complaint fails to state facts constituting a cause of action.

Whatever the shortcomings of the complaint, appellant availed itself of none of the opportunities to improve it. It was content to deny it generally and to go to trial on it. The only question now is whether it contains a statement of facts constituting a cause of action. 1929 Comp. St. § 105-404. In this kind of a case, as appellant suggests and we agree, the essentials will be allegations showing a duty, a breach of it, and injury proximately caused by the breach.

Varying somewhat the order of allegation, and combining and abbreviating, we may say that the complaint contains these allegations: Defendant, in its business of cattle ranching, employed a pump jack with cogwheels, which would cause injury to a person whose clothing or body came in contact with them. Ordinarily such wheels are furnished with a guard, a simple and inexpensive device. The wheels in question were not guarded. The plaintiff was employed as a ranch laborer, and, though he informed defendant that he was inexperienced in operating such machinery and had great difficulty in seeing what he was about (he being partially blind and of failing eyesight), defendant set him to operating the pump jack and the gas engine which furnished its motive power, and required him to oil and grease the same and keep it going. Defendant at all times had notice of the dangerous condition of the pump jack, and that it constituted a dangerous instrumentality, especially to plaintiff with his failing eyesight, and, several days before the occurrence of the injury, promised plaintiff immediately to cure the dangerous condition and to cover and guard the cogwheels for plaintiff's protection. Plaintiff continued his work in reliance upon this promise. On the day in question, while in the regular course of his employment, plaintiff “was struck by a gust of wind blowing through an open door of the pump house and forced and made to slip on the floor, and stumble against the unguarded, uncovered and unprotected *** pump jack, and his *** hand was then and there *** cut off.”

Conceiving that, under the complaint, the alleged proximate cause of the injury was the “gust of wind,” and that the unguarded cogwheels were but a condition, appellant invokes the propositions that the master's duty to furnish a safe place to work does not include a provision against accidents which he could not reasonably be expected to foresee, and that negligence is not actionable unless it be the natural and probable cause of the injury. These propositions we need not question.

[2] We think, however, that the learned counsel for appellant attaches undue importance to the gust of wind. It was itself a mere circumstance or condition, probably unnecessarily pleaded. One who is required to keep machinery running and to oil and grease it is likely to come in contact with it as a result of accidental slipping or falling, or of any occurrence momentarily distracting the attention. Such contact is to be anticipated. It will result in injury or not, according as the master has guarded the machinery in the usual manner. So it seems to us that it is the lack of a guard, rather than the slipping or the gust of wind which caused it, that this complaint relies on as the proximate cause- the “cause which, in natural and continued sequence, unbroken by any efficient, intervening cause, produced the result complained of, and without which that result would not have occurred.” Lutz v. Atlantic & Pacific R. Co., 6 N. M. 496, 30 P. 912, 916, 16 L. R. A. 819. Neither the wind nor the slipping fulfills this definition. It may be that they are causes without which the result would not have occurred. But neither produced the result in natural and continued sequence, and, as to each, there was an efficient intervening cause.

[3][4][5][6] Appellant's next point is that there was a fatal variance between allegations and proof, to an extent that the verdict may not be deemed responsive to the complaint.

While appellee alleged that “he was struck by a gust of wind *** and forced and made to slip on the floor, and stumble against the unguarded, uncovered and unprotected *** pump jack”; he testified in substance: “I was oiling the cogwheels with an old tomato can. I did not have a long can with a spout to it to oil with. Just as I had finished to oil this part where the guard was missing, when I was going to take my hand away, I am not certain, I wasn't certain whether I was going to withdraw from the engine because there was a lot of wind coming in through the doors, before I moved it I was hurt.” He said nothing about slipping or stumbling.

We do not understand that variance in minor attending facts is relied upon by appellant; his principal contention being that the effect of the variance is to switch the probable cause from the gust of wind to the unguarded cogwheels, and to bring in the new theory that, in oiling the dangerous and unguarded part with an unfit instrument, the hand came in contact with it.

True, the evidence puts the matter in a somewhat different light than the complaint put it. We cannot agree, however, that it discloses “an entirely different cause of the injury.” Under either version of what happened, we regard the negligent failure to guard the cogwheels as the efficient cause.

We think also that, under the allegations that appellee was required to oil and grease the...