Martinez v. C. R. Davis Contracting Co., No. 7286

Docket NºNo. 7286
Citation73 N.M. 474, 1964 NMSC 8, 389 P.2d 597
Case DateJanuary 13, 1964
CourtSupreme Court of New Mexico

Page 597

389 P.2d 597
73 N.M. 474
Mary Marie MARTINEZ, Administratrix of the Estate of Ernest
P. Martinez, Jr., a minor, Deceased,
Plaintiff-Appellee,
v.
C. R. DAVIS CONTRACTING COMPANY, Incorporated, a
corporation, Defendant- Appellant.
No. 7286.
Supreme Court of New Mexico.
Jan. 13, 1964.
Rehearing Denied March 9, 1964.

[73 NM 475] Keleher & McLeod, John B. Tittmann, Albuquerque, for appellant.

Smith, Kiker & Ransom, Albuquerque, for appellee.

COMPTON, Chief Justice.

This is a tort action for the wrongful death of the plaintiff's intestate, a child of the age of 14 years and 5 months, allegedly resulting from the defendant's negligence. Issue was joined, and various affirmative defenses were pleaded, among which was the defense of contributory negligence of the decedent. The cause was tried to a jury and from an adverse judgment on the verdict, the defendant has appealed.

The appellant presents its argument under these points, and we quote: (a) 'The court erred in failing to direct a verdict for the defendant for the reason that plaintiff failed to make out a case of negligence against the defendant' and (b) 'the court erred in failing to direct a verdict for the

Page 598

defendant, for the evidence showed contributory negligence on the part of the decedent as a matter of law.'

As we understand appellant's points, they simply challenge the sufficiency of the evidence to sustain the verdict. A recital of the evidence rather extensively is essential in order to understand the points argued.

Appellant had entered into a contract with the City of Albuquerque by which appellant undertook to construct a sewer line for the [73 NM 476] city, within the city. In the course of the construction it became necessary to excavate a manhole some 12 by 20 feet, in the 1400 block of John Street, Southeast, referred to as manhole '9'. The crucial date is July 10, 1961, which was on a Monday. Previously it had been raining and the excavation had become partially filled with water, and on the latter date it had filled forming a pond to a depth of approximately 12 feet.

About 5:00 P.M. on July 10, Ernest P. Martinez, Jr., the decedent, and another boy entered the excavation. On the surface of the pond there was floating an object which appeared to be a raft. Later it developed that the object was a cement form some 5 by 6 feet consisting of boards nailed together. Both boys boarded this contraption and, while attempting to cross the pond, the boards tipped and young Martinez either jumped or fell off and was drowned.

The initial question is whether appellant, in permitting the excavation to go unguarded and in failing to warn the decedent of the existing danger, exercised due care for his safety. The jury concluded that he did not, and we think the evidence amply supports its verdict. In the area there were 6 other similar excavations containing water. Barricades had been placed generally around the area, but not around the individual manhole excavations. Admittedly, the president of appellant company knew that the area in question was densely populated with children and that during the months of April, May and June, and the early days of July, the company had difficulty with children playing around the excavations. He testified that none of the excavations were closer together than 200 feet and that only one watchman was on duty to guard the excavations, the equipment, and the project generally. He also testified that this watchman was on duty only from 4:00 p. m. to midnight. Appellant's foreman testified that it was impossible for one watchman to guard all the excavations against the children of the area. And there is evidence that it had rained on Friday, July 7, and children were seen that day playing in the excavation in which the decedent was drowned. Thus, we think the jury was warranted in finding that appellant was negligent in failing to exercise due care for the safety of the decedent.

Appellant relies upon our own case, Mellas v. Lowdermilk, 58 N.M. 363, 271 P.2d 399. The case is distinguishable on the facts. In that case the evidence affirmatively established that Lowdermilk was free of negligence in maintaining the pond in which young Mellas was drowned.

The point is made that the decedent was negligent as a matter of law and that his negligence contributed as a proximate cause of the drowning. Appellant again relies on Mellas v. Lowdermilk, supra. We repeat, the case is distinguishable on the facts. [73 NM 477] However, in addition we would point out that insofar as the dicta in that case states a rule of due care of a minor differently from what is here held, the same is not controlling.

The question posed by the evidence is, can reasonable minds differ as to whether the child because of his youth discovered the condition or realized the risk involved in intermeddling in it or in coming within the area made dangerous by it? If reasonable minds can differ the case should be affirmed. If not, it should be reversed. In the instant case we think reasonable minds can well differ. As to what is negligence on the part of a child 14 years of age see Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507; Selby v. Tolbert, 56 N.M. 718, 249 P.2d 498; Jacobs v. H. J. Koehler Sporting Goods Co., 208 N.Y. 416, 102 N.E.

Page 599

519, L.R.A.1917F 7 and the note in 1917F 10, 22 (note 33), and 109. Also see 107 A.L.R. 4, and 174 A.L.R. 1081. See also Article 'Trespassing Children' by Dean Prosser, 47 Cal.L.R., pages 461, 462. We see no reason for a different rule where ponds or lakes are involved than where other known dangerous instrumentalities cause the injury. We conclude that the question of the minor's negligence presents an issue of fact, which issue was presented to the jury under proper instructions. Appellant had the burden of establishing affirmatively the defense of contributory negligence, and we may say there is evidence from which the jury could have so found, but the jury having found otherwise, its verdict should not be disturbed.

The argument is made that the decedent's age, experience, and intellectual background varies the standard by which the conduct of the decedent should be measured. We are not impressed with this argument. The correct test by which the conduct of a child is to be measured in determining contributory negligence is whether the child exercised that degree of care ordinarily exercised by children of like age, capacity, discretion, knowledge and experience under the same or similar circumstances for his own protection. The court so instructed the jury.

The judgment should be affirmed, and it is so ordered.

CHAVEZ and MOISE JJ., concur.

CARMODY and NOBLE, JJ., dissenting.

NOBLE, Justice (dissenting).

I am unable to agree that the evidence substantially supports a finding of breach of a legal duty owing by defendant contractor to decedent.

It must be noted at the outset that in New Mexico it is established that the [73 NM 478] attractive nuisance doctrine will not be extended to include ponds, pools and other natural or artificial bodies of water, ditches or canals. Mellas v. Lowdermilk, 58 N.M. 363, 271 P.2d 399. The majority point to the fact that decedent and his companion boarded what appeared to be a raft, but was actually a cement form, floating on the water of the excavation, from which decedent either fell or jumped into the water and was drowned. The fact that a raft or other object floats on a body of water does not change the general rule except where the float conceals an otherwise apparent risk, which we do not have in the present case. Lockridge v. Standard Oil Co., 124 Ind.App. 257, 114 N.E.2d 807; Rallo v. Heman Const. Co., 291 Mo. 221, 236 S.W. 632; Bass v. Quinn-Robbins Co., 70 Idaho 308, 216 P.2d 944; 36 A.L.R. 224-237.

The facts pointed to as supporting a finding of negligence by the contractor are: (1) knowledge that children played around the excavations; (2) that only a single watchman was employed from four o'clock p. m. to midnight to guard the excavations, the equipment, and the project generally; (3) that all the excavations could not be guarded against the children of the area by a single watchman; and (4) that children had been seen playing in the excavation in which decedent drowned. The facts pointed to are such as might support a finding of negligence in the case of an attractive nuisance, but in my view do not substantially support a finding of breach of a legal duty owing by the contractor to decedent.

An independent contractor in charge of a road or street under repair is charged with the duty of making adequate provision for the safety of the...

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15 practice notes
  • Yount v. Johnson, No. 15792
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 26, 1996
    ...to guide juries sitting in judgment of minors. See Lerma, 117 N.M. at 785, 877 P.2d at 1088; Martinez v. C.R. Davis Contracting Co., 73 N.M. 474, 477, 389 P.2d 597, 598-99 (1964); Thompson v. Anderman, 59 N.M. 400, 415-16, 285 P.2d 507, 516-17 (1955); Restatement (Second) of Torts § 283A (1......
  • Taylor v. Mathews, Docket No. 10522
    • United States
    • Court of Appeal of Michigan (US)
    • April 25, 1972
    ...defendant, Peabody Coal Co. The verdict and judgment for plaintiff was affirmed on appeal. Martinez v. C. R. Davis Contracting Company, 73 N.M. 474, 389 P.2d 597 (1964). This case involved a tort action for the wrongful death of the plaintiff intestate, a child of the age of 14 years, 5 mon......
  • Herman v. Miners' Hosp., No. 19488
    • United States
    • New Mexico Supreme Court of New Mexico
    • February 28, 1991
    ...it reversed the examiner's finding of actual notice, Wilson required the conclusion that the statute of limitations was not tolled. See 73 N.M. at 474, 389 P.2d at 596. Although the court of appeals properly construed Wilson, it applied an erroneous factual predicate. Our conclusion that th......
  • Williams v. Town of Silver City, No. 885
    • United States
    • New Mexico Court of Appeals of New Mexico
    • September 22, 1972
    ...of Santa Fe, 75 N.M. 160, 402 P.2d 48 (1965); Klaus v. Eden, 70 N.M. 371, 374 P.2d 129 (1962); Martinez v. C. R. Davis Contracting Co., 73 N.M. 474, 389 P.2d 597 (3) The Decedents were Not Guilty of Contributory Negligence and Assumption of Risk as a Matter of Law. Defendant claims the dece......
  • Request a trial to view additional results
15 cases
  • Yount v. Johnson, No. 15792
    • United States
    • New Mexico Court of Appeals of New Mexico
    • March 26, 1996
    ...to guide juries sitting in judgment of minors. See Lerma, 117 N.M. at 785, 877 P.2d at 1088; Martinez v. C.R. Davis Contracting Co., 73 N.M. 474, 477, 389 P.2d 597, 598-99 (1964); Thompson v. Anderman, 59 N.M. 400, 415-16, 285 P.2d 507, 516-17 (1955); Restatement (Second) of Torts § 283A (1......
  • Taylor v. Mathews, Docket No. 10522
    • United States
    • Court of Appeal of Michigan (US)
    • April 25, 1972
    ...defendant, Peabody Coal Co. The verdict and judgment for plaintiff was affirmed on appeal. Martinez v. C. R. Davis Contracting Company, 73 N.M. 474, 389 P.2d 597 (1964). This case involved a tort action for the wrongful death of the plaintiff intestate, a child of the age of 14 years, 5 mon......
  • Herman v. Miners' Hosp., No. 19488
    • United States
    • New Mexico Supreme Court of New Mexico
    • February 28, 1991
    ...it reversed the examiner's finding of actual notice, Wilson required the conclusion that the statute of limitations was not tolled. See 73 N.M. at 474, 389 P.2d at 596. Although the court of appeals properly construed Wilson, it applied an erroneous factual predicate. Our conclusion that th......
  • Williams v. Town of Silver City, No. 885
    • United States
    • New Mexico Court of Appeals of New Mexico
    • September 22, 1972
    ...of Santa Fe, 75 N.M. 160, 402 P.2d 48 (1965); Klaus v. Eden, 70 N.M. 371, 374 P.2d 129 (1962); Martinez v. C. R. Davis Contracting Co., 73 N.M. 474, 389 P.2d 597 (3) The Decedents were Not Guilty of Contributory Negligence and Assumption of Risk as a Matter of Law. Defendant claims the dece......
  • Request a trial to view additional results

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