MEDINA v. N.M. Consol. MIN. CO.

• Decision Date: 22 December 1947
• Docket Number: No. 5050,5050
• Parties: MEDINA v. NEW MEXICO CONSOLIDATED MIN. CO. et al.
• Court: New Mexico Supreme Court

51 N.M. 493

188 P.2d 343

MEDINA

v.NEW MEXICO CONSOLIDATED MIN. CO. et al.

No. 5050.

Supreme Court of New Mexico.

Dec. 22, 1947.

[188 P.2d 344, 51 N.M. 494]

Vincent M. Vesely, of Silver City, for appellant.

Woodbury & Shantz, of Silver City, for appellee employer.

Hubert O. Robertson, of Silver City, for appellee insurer.

COMPTON, Justice.

Appellant, Ann Medina, instituted suit against appellees, New Mexico Consolidated Mining Company, employer, and London Guarantee and Accident Company, Limited, its insurer, in a proceeding under the New Mexico Workmen's Compensation Act, section 57-913, 1941 Comp., to recover compensation on account of the death of her husband, Ignacio Medina, occurring on January 19, 1946. The case was tried to a jury and at the conclusion of the testimony a motion for an instructed verdict was sustained and judgment entered accordingly. From the adverse judgment appellant appeals.

Ignacio Medina, at the time of his death, was regularly employed as a 'shift' boss at the Copper Flats Mine of the employer. The workings of the mine are upon two levels, 400 and 200 feet, respectively, and connected by a manway. Access to the upper level is gained by climbing an almost verticalladder, with offsets as safety devices, a distance of 130 feet through the manway, thence up an 80 foot drift to a cross-drift, where the current mining operations at that level are conducted. The cross-drift extends approximately 120 feet to the left and 500 feet to the right. The left was unused at the time, except possibly for storage of old timbers. To the right, a distance of 500 feet, is located an over-night powder magazine where all dynamite is supposed to be stored.

The previous day, the deceased and a group of four employees, mined on the 200 foot level, which necessitated blasting. When the day's work was done, fuses and caps were placed in the left drifts, and a partial box of dynamite was left by Medina in the right drift, as a distance of approximately 300 feet, near a well-traveled path extending from the entrance of the mine to the powder magazine. Due to his contract of employment, Medina was vested with the discretion to work in and about the mine wherever his services were needed or required. If unsafe conditions were found, it was his duty to correct them and report such conditions to the superintendent. On the day in question, they were to work on the lower level reinforcing the mine with timber. They usually worked in pairs, except Medina. The group had their noonday meal together, and about 1:30 P.M., or shortly thereafter, Medina was seen walking towards the manway which led to the upper level. Some time later they heard the report of one or more blasts from that level, but gave it no concern until he did not appear at quitting time. A search was made and his body, without the head, was found at or near the entrance of the mine. Near the body was a box of dynamite recently opened, with two or three sticks of dynamite missing. The deceased was wearing a miner's safety hat, fragments of which were scattered over a wide area. The walls and ceiling near the body were spattered with blood. Several feet away from the body a fuse with battered end was found.

Appellant filed her claim, alleging that Medina's death arose out of and in the course of his employment and asked judgment accordingly. By answer, appellee deniedthat the injury, resulting in the death of Medina, arose our of and in the course of his employment.

The question presented for our determination is whether there is substantial evidence that would support a verdict for appellant.

When it is error for the trial court to direct a verdict, has been announced in various ways (Federal Land Bank v. Upton, 34 N.M. 509, 285 P. 494; Melkusch v. Victor American Fuel Co., 21 N.M. 396, 155 P. 727; New Mexico-Colorado Coal & Mining Co. v. Baker, 21 N.M. 531, 157 P. 167; Young v. Southern Pac. Co., 34 N.M. 92, 278 P. 200) and we also held that it is error for the trial court to direct a verdict for the defendantif there is substantial evidence that would support a verdict for plaintiff. Caviness v. Driscoll Const. Co., 39 N.M. 441, 49 P.2d 251.

'Where there is substantial evidence that the death of an employee resulted from accident and that the accident occurred during his hours of work, at a place where his duties required him to be, or where he might properly have been in the performance of such duties, the jury or other trier of the issues of fact may reasonably conclude therefrom, as a natural inference, that the accident arose out of and in the course of the employment.' Southwestern Portland Cement Co. v. Simpson, 10 Cir., 135 F.2d 584, 588; cf. McKinney v. Dorlac, 48 N.M. 149, 146 P.2d 867; Sullivan v. Suffolk Peanut Co., 171 Va. 439, 199 S.E. 504, 120 A.L.R. 677; Tewes v. Industrial Commission, 194 Wis. 489, 215 N.W. 898; Lewis v. Industrial Commission, 178 Wis. 449, 190 N.W. 101, 25 A.L.R. 139.

Suicide, as a defense, was not an issue in the case, but it is now claimed that as the evidence shows that the injury was intentionally self-inflicted, such evidence...