Mares v. N.M. Pub. Serv. Co.

• Decision Date: 04 May 1938
• Docket Number: No. 4299.,4299.
• Citation: 42 N.M. 473,82 P.2d 257
• Parties: MARESv.NEW MEXICO PUBLIC SERVICE CO.
• Court: New Mexico Supreme Court

42 N.M. 473

82 P.2d 257

MARES

v.NEW MEXICO PUBLIC SERVICE CO.

No. 4299.

Supreme Court of New Mexico.

May 4, 1938.Rehearing Denied Aug. 23, 1938.

Appeal from District Court, Taos County; Livingston N. Taylor, Judge.

Action by Frank V. Mares, administrator of the estate of Corina Mares, deceased, against the New Mexico Public Service Company for the death of Corina Mares by electrocution. From a judgment for plaintiff, defendant appeals.

Judgment affirmed with a remittitur, and otherwise cause reversed and remanded with instructions that a new trial be granted.

In a personal injury action, common-law and statutory negligence may be stated in the same count, so long as the acts upon which plaintiff relies produced the one injury and damage constituting the subject matter of the action.

Floyd W. Beutler, of Taos, and J. O. Seth and A. K. Montgomery, both of Sante Fé, for appellant.

H. A. Kiker and A. M. Fernandez, both of Santa Fé, for appellee.

BRICE, Justice.

The question is whether a judgment entered for appellee, following a jury verdict of $12,000 for the alleged negligent killing of his intestate, is erroneous for either of the several reasons referred to in this opinion.

Certain facts alleged in the complaint, and others stated in appellant's brief, are not controverted; and from these we deduce the following as material:

Appellee is the administrator of the estate of Corina Mares, deceased. The appellant is a New Mexico corporation which, at all times mentioned in this proceeding, was engaged in the business of generating and distributing electric current in the village of Taos and surrounding country; and for such purpose owned, controlled, and managed transmission lines, among which is one that runs from the village of Taos westerly for a distance of several miles to a place called Ranchitos. This line follows a winding road out of Taos about three miles to a pole set at the southeast corner of the property of Vicente Mares, located on the north side of the road. At this pole the line divides. The main line follows the Ranchitos road, which at this pole makes an almost right-angled turn to the west; and the branch line runs in a southerly direction along the west side of a road, intersecting here from the south, for a distance of about one-third of a mile to the residence of J. P. Brandenburg. This line crosses the Ranchitos road from the pole mentioned, and was fastened to the next pole along the Brandenburg road, about 140 feet distant; and then on to and past the Brandenburg house. The Ranchitos road forms the north boundary, and the Brandenburg road the east boundary, of what is known as the Carabajol pasture, which is fenced with a barbedwire fence. The transmission line going to the Brandenburg residence runs along the east boundary of the pasture, close to and above this fence.

The appellee's intestate, a girl between thirteen and fourteen years of age, intending to remove horses from the pasture, attempted to open a wire gate in the fence forming the north boundary of the Carabajol pasture. At that time one of the two wires composing the branch transmission line, which had been previously broken between the pole from which the transmission lines branched, and the next pole 140 feet away on the Brandenburg road, was resting across the east and north fence lines of the pasture, but not touching the ground; making the third side of a triangle formed by it and the two lines of fence running from the corner of the pasture west and south. The gate which appellee's intestate attempted to open was made of wire and at that time was charged with electricity caused by the fence wires coming in contact with the broken high-tension wire of appellant, which resulted in her immediate death by electrocution. A cow in the pasture was shortly thereafter electrocuted by coming in contact with the fence wire.

Testimony regarding other facts will be mentioned in the course of the opinion.

[1][2][3] One charge of negligence in appellee's complaint is in the following words: “That on the 18th day of September, 1933, at a point where said line of poles and wires crosses the public road leading from the Village of Taos to Ranchitos Arriba and where said line of poles and wires runs in line with and directly above the fence of one Mrs. Prudencia Carabajal, on the west end of the Village of Taos, and at a place where people travel daily, the defendant negligently, carelessly and with a reckless disregard to consequences and the rights and safety of plaintiff's intestate and others traveling and being daily in the immediate vicinity thereof, suffered one of the said wires to be and remain in contact with the wires of said fence, within a few feet of said public road, while said electric wire was charged with and conducting a high and deadly voltage of electricity, then and there and thereby carelessly and negligently causing said fence, for several hundred feet along the south side and within a few feet of said public road to and including a wire gate opening into said road, to be and remain charged with a high and deadly voltage of electricity.”

The district court held that the rule res ipsa loquitur applied, and so instructed the jury. Was this error? It no doubt was correct if permissible under the state of the pleadings. Anderson v. Eastern Minnesota Power Co., 197 Minn. 144, 266 N. W. 702. But does appellee charge specific acts of negligence; and if so, then does the rule apply? If appellee charged negligence in general terms only, the district court did not err in the premises. See annotations in 79 A.L.R. beginning at page 48.

Appellee's contention is thus stated: “*** We have not pointed out the specific act of negligence by which it was suffered to be in contact. Whether it was a lack of proper devices to determine that the line was out of order, negligence in attending to such devices, if any, negligence in making discovery, or negligence in removing the contact after discovery, we do not know and do not specify. Neither do we specify that the negligence was defective wiring, defective construction, poor material, that the wires were strung too loose or too tight, or that there were not sufficient trained employees to properly maintain the line. We do not even allege that the wire broke. This is typically a case where we were not in position to say, and in which the rule of evidence res ipsa loquitur applies with full force.”

But it would not matter whether any negligence entered into the breaking of the wire, if the appellant was negligent in failing to remove the wire from contact with the fence. Let us assume that the breaking of the wire was not caused by any negligent act of appellant; yet if it knew, or should have known in the exercise of due care under the circumstances, that the wire had broken and had electrified the fence, and with this knowledge, actual or implied, permitted it to remain longer than was reasonably necessary to remove it, the appellant would have been negligent.

Appellee alleged that appellant “suffered its wires to be and remain in contact with the fence.” The contentions are over the word “suffered.” If appellee had used the word “caused” instead, the question could not have arisen; for unquestionably the charge of negligence would have then been general. But appellant urges that “suffered” means “permitted,” and therefore implies “knowledge”; from which it is contended that a specific act of negligence is charged, and cites Sanders et ux. v. Carthage, 330 Mo. 844, 51 S.W.2d 529, and Rice v. White et al., Mo. Sup., 239 S. W. 141, and other cases, to support its contention. On the other hand, appellee cites May Dept. Stores Co. v. Bell, 8 Cir., 61 F. 2d 830; Keady v. Stix, Baer & Fuller Co., Mo.App., 15 S.W.2d 379; Price v. Metropolitan Street Ry. Co., 220 Mo. 435, 119 S.W. 932, 132 Am.St.Rep. 588; Malloy v. St. Louis & S. R. Co., 173 Mo. 75, 73 S. W. 159; Porter v. St. Joseph Ry., etc., Co., 311 Mo. 66, 277 S.W. 913; Kuether v. Kansas City Light & Power Co., 220 Mo. App. 452, 276 S.W. 105; Washington v. Ravel, Tex.Civ.App., 14 S.W.2d 367; Mintzer v. Wilson, 21 Cal.App.2d 85, 68 P.2d 370, 371; Francisco v. Circle Tours, etc., Co., 125 Or. 80, 265 P. 801; Pennsylvania Co. v. Clark, 6 Cir., 266 F. 182; Texas-La. Power Co. v. Daniels, Tex.Civ. App., 61 S.W.2d 179; Kendall v. People's Gas & Fuel Co., La.App., 158 So. 254, a number of which hold that the allegations in the complaints are general notwithstanding the use of the words “suffer” or “permitted,” etc., in describing the cause of the injury.

The subtle distinctions advanced by the parties regarding the meaning and effect of the word “suffered,” as used in the complaint, need not be disturbed by a decision of this court; as from the view we take it is unnecessary to a determination of the case. Paragraph 6 of the complaint is: “That at said time and place plaintiff's intestate, while attempting to open said gate, and without knowledge of, or warning as to, the condition of said wire fence and gate, and without fault on her part, came in contact with, and received an electric shock from said wire fence and gate, so charged with electricity as aforesaid, from which shock, and as the proximate result thereof and of the culpable carelessness, recklessness and negligence of defendant, plaintiff's intestate died, to the damage, etc. ***” This is a general charge of negligence. In fact, it is the only charge that the negligence of appellant was the proximate cause of the child's death. It is charged in paragraph 5 that the wires of the fence were electrified through the negligence of appellant; and in paragraph 6 that the child came to her death by reason of contact with such wires. But the charge of negligence in paragraph 6 is general and covers any negligence that might be the proximate cause of the child's death, whether that of suffering the wires to electrify the fence, the breaking of the wire, or...