McMurdo v. Southern Union Gas Co., 5507

• Decision Date: 26 September 1952
• Docket Number: No. 5507,5507
• Citation: 248 P.2d 668,56 N.M. 672,1952 NMSC 90
• Parties: McMURDO et al. v. SOUTHERN UNION GAS CO.
• Court: New Mexico Supreme Court

Page 668

248 P.2d 668

56 N.M. 672

McMURDO et al. v. SOUTHERN UNION GAS CO.

No. 5507.

Supreme Court of New Mexico.

Sept. 26, 1952.

Quincy D. Adams, Albuquerque, for appellants.

Hugh R. Horne, Albuquerque, for appellee.

COMPTON, Justice.

Appellant, Jim McMurdo, representative of the estates of J. B. Callahan and Lillie May Callahan, deceased, instituted this action against appellee, Southern Union Gas Company, for their wrongful eaths.

Appellee was engaged in furnishing natural gas, for heating purposes, to residents of the City of Albuquerque and vicinity, among whom was J. B. Callahan, the deceased. On the morning of January 9, 1950, circumstances about the Callahan residence were so unusual that officials of the city were called to investigate. Upon arriving, the bodies of J. B. Callahan and Lillie May Callahan, his mother, were found in a small bedroom used by him, in which an unvented open type gas heater was burning. All doors and windows to this room were closed and the odor of raw gas and carbon monoxide fumes were present. There was food upon a table near the bed on which the bodies were found. Further investigation disclosed unopened Christmas packages. Some were found in his house and others between the screen and front door, indicating death had resulted prior to the holidays. Neither had been seen subsequent to December 23, previously. Near the J. B. Callahan residence was another one room house in which Lillie May Callahan lived and did the cooking for herself and son and in which a gas stove, used for cooking, was also burning at the time the officers arrived.

The complaint charges that appellee negligently furnished gas to the residence of J. B. Callahan in such manner as to permit it to escape from its pipes, or the pipes and appliances of J. B. Callahan so as to generate poisonous fumes or gases, after having been previously notified by J. B. Callahan that such gases and fumes were escaping into his residence.

The anower contained legal questions, admissions, and denials. The material allegations were put in issue by a general denial. Contributory negligence and assumption of risk were pleaded as affirmative defenses. Also, as an affirmative defense in avoidance of liability, appellee pleaded that the death of Lillie May Callahan was proximately caused by a malfunctioning open type gas heater, improperly installed by persons other than appellee, negligently maintained by J. B. Callahan and operated in a negligent manner. From a verdict in favor of the Gas Company, appellant appeals. The submission of the affirmative defenses to the jury, the giving of certain instructions, and the refusal to give certain requested instructions, are assigned as error.

It is insisted that the affirmative defenses, contributory negligence and assumption of risk, in so far as Lillie May Callahan was concerned, were not supported by substantial evidence. In this regard it is shown that she was of age of 57 years, in good health, and performed the usual duties of a housewife. She was possessed of all her faculties, physically and mentally. As previously seen, she did the cooking for herself and son on a gas burning stove. Presumably, on the day of the accident she prepared his evening meal, which was later found on he table beside his bed. Thus, she had ample opportunity to become acquainted with the dangerous instrumentality, which possibly caused her death. This being so, whether her knowledge of the danger attending such an instrumentality, constituted a sufficient warning of peril and whether the care thereafter exercised by her was commensurate with the known danger, were questions for the jury. The text writer at 38 Am.Jur. (Negligence) Sec. 188, says:

'* * * The circumstances of a case, including the physical characteristics of the offending instrumentality may be such that an appreciation of the peril may be inferred from the plaintiff's knowledge of the instrumentality. Accordingly a question of contributory negligence does not become one of law for the Court to decide solely for the reason that there is no evidence directly to the effect that the plaintiff appreciated the peril. In other words, it is for the jury to determine whether knowledge of the physical characteristics of the offending instrumentality constituted a sufficient warning of peril to the plaintiff. * * *'

It would appear, therefore, that the court properly submitted the issues of contributory negligence and assumption of risk to the jury.

It is claimed that appellee's pleading, in avoidance, constituted an admission that death resulted from asphyxiation...