McMullen v. Ursuline Order of Sisters

• Citation: 246 P.2d 1052,56 N.M. 570,1952 NMSC 76
• Decision Date: 31 July 1952
• Docket Number: No. 5453,5453
• Parties: McMULLEN et al. v. URSULINE ORDER OF SISTERS.
• Court: Supreme Court of New Mexico

Page 1052

246 P.2d 1052

56 N.M. 570

McMULLEN et al. v. URSULINE ORDER OF SISTERS.

No. 5453.

Supreme Court of New Mexico.

July 31, 1952.

Harry L. Bigbee, Donnan Stephenson, Santa Fe, for appellants.

Owen B. Marron, Alfred H. McRae, Albuquerque, for appellee.

COMPTON, Justice.

This is a personal injury action. Appellee, during the 1945-1946 school year, operated a private boarding school at Waterflow, New Mexico. Appellant was then 17 years of age. Previously, he had attended the public school at Kirtland, near Farmington. His attendance at the Kirtland school was quite irregular, resulting from his truancy. His parents, upon learning that he had absented himself from the Kirtland school upon several occasions without their permission, became greatly concerned, and to guard against such delinquency, decided to enroll him in the private school conducted by appellee. His mother and father, accompanied by appellant, discussed his truancy with the superintendent of appellee's school. The superintendent was fully informed of his record, nevertheless agreed to his enrollment and assured his parents that he would be kept in school during school hours and off the highways. Appellant was not to leave the school grounds without the permission of his parents. Pursuant to the undertaking, appellant was enrolled in appellee's school. He attended regularly during the Fall, 1945 term, and until March 14, 1946, the date of the alleged injury.

In the Spring of 1946, appellee was engaged in an improvement program of its school grounds, including walks, driveways, and the construction of a grotto. On various occasions students were dismissed during school hours to participate in the program. It appears that on March 13, 1946, certain girl students were permitted to go to a mine located in the vicinity for the purpose of obtaining shale to be used in the program. The following day, appellant, with four younger boys, was excused from classes to do likewise. Permission was given the boys to dig shale in the place visited by the girls the previous day. Pursuant to the permission granted, appellant and his four companions took a tractor with wagon attached, tub for carrying shale, and went to the mine. The entrance to the mine was protected by what appeared to appellant to be a solid rock ledge supporting an overhanging of four or five feet. The method employed in mining was to crawl under this ledge, dig the shale, fill the tub and load it into the wagon. On the occasion in question, while appellant was thus engaged, the ledge violently caved down upon him causing serious injury.

The action was instituted by Lewis D. Durant as next friend, but due to delay, appellant had attained his majority at the time of hearing and the action was carried on in his name. The complaint generally charges that appellee was negligent in permitting appellant, without permission of his parents, to leave the school ground, and to mine the shale without proper supervision. The answer denies all material allegations. Contributory negligence and assumption of risk are also pleaded as a defense. The cause was tried to the court sitting with a jury. When appellant rested, appellee moved for a directed verdict on the grounds that there was no evidence of appellee's negligence, and that appellant was guilty of contributory negligence as a matter of law. The motion was granted and from a judgment following the verdict, appellant brings the cause here for review.

The questions presented are, (a) whether the trial court erred in determining the evidence introduced by appellant was insufficient to require submission of the case to the jury, and (b) whether the court erred in determining that appellant was contributorily negligent as a matter of law.

When a verdict is directed as being without support in the evidence, the court must view a plaintiff's evidence in the most favorable aspect, indulging all reasonable inferences to be drawn therefrom and disregarding all unfavorable testimony and inferences, to sustain the verdict. Chandler v. Battenfield, 55 N.M. 361, 233 P.2d 1047; Sanchez v. Gattas, 54 N.M. 224, 219 P.2d 962; Dickerson v. Montoya, 44 N.M. 207, 100 P.2d 904; Hobbs v. Kizer, 10 Cir., 236 F. 681.

So viewing the evidence of appellant, plaintiff below, we conclude that the trial court erred in directing the verdict. The question was one for the jury if there were evidence of the existence of a danger known to the school authorities who neglected to guard its student against such danger or if there were an unknown danger which appellee, by the exercise of ordinary care as a reasonable prudent person, would have discovered. In this regard, there is no evidence that appellee's servants had ever inspected the shale mine or had otherwise attempted to determine if shale could be safely mined therefrom. We quote from appellant's testimony:

'Q. Did you have any discussion with any of the faculty about how and where the shale was to be gotten? A. Yes, we had.

'Q. With whom? A. Sister Ruth Helen.

'Q. Will you tell what your instructions were? A. Since we could not get the pickup to load the shale, we had to take the tractor and a washtub and shovels.

'Q. Who gave you the instructions? A. The discussion was with Sister Ruth Helen, I believe Whittington and myself.

'Q. Was the location mentioned in your conference with Sister Ruth Helen? A. Yes, sir, that is the only shale bed there, that we knew of.

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'Q. Will you state again, in a little more detail, Mr. McMullen, the instructions that you received, if any, from Sister Ruth Helen? A. We talked to her, but she could not give us permission. She had to talk to Sister Eugenia, I guess.

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'Q. What did she say after she returned? A. She told us to go to the same place and get the shale and return to the school.

'Q. What place did she refer to? A. The same place the girls had gone.

'Q. Was the location generally specified? A. Yes, sir, it was.

'Q. What was the location she told you to go to? A. Sister Ruth Helen said to go to Smouse Mine and continue up the road from the Smouse Mine to the only shale pit there was there.

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'Q. Where was the shale available? A. Only at that pit. That was the only shale we saw. * * *' We think it is clear that from the unsupervised mission, under the circumstances, a jury could reasonably infer that appellee was negligent.

The annotator, at 160 A.L.R. 229, states generally the circumstances under which school authorities may become liable:

'* * * where a school district or other agency or authority is liable for the negligence of a teacher, and a teacher, while acting within the scope of his authority or employment, orders or directs a pupil or student to perform a certain errand or task for the benefit of the teacher or the class, whereby, because of the immaturity or inexperience of the pupil or student, * * * injuries to the latter or to a fellow pupil or student result therefrom, the teacher may be found to have been negligent so as to render the school district or other agency or authority liable therefor. * * *'

The author, at 38 Am.Jur., Negligence, states the rule, under which a defendant's liability may be withdrawn from the jury, as follows:

'* * * Where not only the facts constituting the conduct of the parties, but also the standard of care which they should have exercised, are to be determined, the case is entirely one of fact to be decided by the jury. * * *' (Section 344)

'The question of the defendant's liability lawfully can be withdrawn from the jury and determined by the court as a question of law when, and only when, the facts are indisputable, being stipulated, found by the court or jury, established by evidence that is free from conflict, and raise an inference which is so certain that all reasonable men, in the exercise of a fair and impartial judgment, must agree upon it and draw the same conclusion. * * *

'As long as the question remains whether either party has performed his legal duty or has observed that degree of care or caution imposed upon him by law, and the determination of that question involves the weighing and consideration of evidence, the question must be submitted as one of fact. * * *' (Section 345)

In following the rule, in Archuleta v. Jacobs, 43 N.M. 425, 94 P.2d 706, 711, we said:

'Of course, the character and quality of performance required to be exercised in dealing with a minor, and likewise the character and quality of performance by which a minor's conduct is itself measured, in personal injury cases, must vary according to the circumstances; yet, there still remains in cases of this character, one method by which to gauge it: Ordinary, reasonable, or due care under the circumstances. See the case of Charbonneau v. MacRury, 84 N.H. 501, 153 A. 457, for a very scholarly and illuminating discussion of the question of ordinary care and caution as it applies both to an infant's own conduct and the conduct of one toward an infant.'

Also, in Olguin v. Thygesen, 47 N.M. 377, 143 P.2d 585, 591, we adhered to the rule:

'* * * 'when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury' is the rule almost universally applied, and the one which we approved and applied in Padilla v. Atchison, T. & S. F. R. Co., 16 N.M. 576, 597, 120 P. 724, 729. See, also, Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540, and Russell v. Davis, 38 N.M. 533, 37 P.2d 536.'

The courts of other jurisdictions are in accord. Hanson v. Reedley Joint Union High School Dist., 43 Cal.App.2d 643, 111 P.2d 415; Brigham Young University v. Lillywhite, 10 Cir., 118 F.2d 836, 137 A.L.R. 598; Beardsell v. Tilton School, 89 N.H. 459, 200 A. 783; Stockwell v. Board of Trustees of Leland Stanford Junior University, 64 Cal.App.2d 197, 148 P.2d 405; Satariano v. Sleight, 54 Cal.App.2d 278, 129 P.2d 35.

Appellee...