Montanez v. Cass

• Citation: 546 P.2d 1189,1975 NMCA 142,89 N.M. 32
• Decision Date: 02 December 1975
• Docket Number: No. 1795,1795
• Parties: Carlos MONTANEZ, Plaintiff-Appellant, v. D. L. CASS, Surviving Partner of Cass-Fitts Electric Company, a Partnership, Wolfson Oil Company, and New Mexico Electric Service Company, Defendants- Appellees, Security Insurance Group, Intervenor-Appellee.
• Court: Court of Appeals of New Mexico

Page 1189

546 P.2d 1189

89 N.M. 32

Carlos MONTANEZ, Plaintiff-Appellant, v. D. L. CASS, Surviving Partner of Cass-Fitts Electric Company, a Partnership, Wolfson Oil Company, and New Mexico Electric Service Company Defendants- Appellees Security Insurance Group, Intervenor-Appellee.

No. 1795.

Court of Appeals of New Mexico.

Dec. 2, 1975.

Certiorari Granted Jan. 16, 1976.

Warren F. Reynolds, C. Barry Crutchfield, Hobbs, for plaintiff-appellant.

Gerald A. Lewis, J. W. Neal, Neal & Neal, Hobbs, Don Maddox, Maddox, Maddox & Cox, Hobbs, for N. M. Electric Serv. Co.

Dewie B. Leach, Hobbs, for D. L. Cass.

William W. Bivins, Bivins & Weinbrenner, P.A., Las Cruces, for Wolfson Oil Co.

OPINION

SUTIN, Judge.

This is an appeal by plaintiff from a summary judgment granted defendants. It arose out of an alleged claim for damages caused by the negligence of the defendants during the attempted removal of a secondary electric system by Gary Electric by whom plaintiff was employed. We reverse.

A. Positions of Parties Defendant

1. Wolfson Oil Company

Defendant Wolfson Oil Company drilled an oil well several miles south of Eunice, New Mexico, close to the Texas state line. On February 8, 1969, the well came into production. Wolfson employed defendant Cass-Fitts Electric Company (Cass) to electrify the well via a secondary electric system. Wolfson rented two transformers from defendant New Mexico Electric Service Company (Electric Service). The well was plugged on October 24, 1970. Wolfson employed Gary Electric to take the secondary system down.

Wolfson contends:

(1) that plaintiff was contributorily negligent as a matter of law, and

(2) that Wolfson, as an employer of Gary Electric, was not liable to plaintiff while he was engaged in the performance of inherently dangerous contracted work.

2. Cass-Fitts Electric Company and New Mexico Electric Service Company

Cass constructed the secondary system according to its own specifications and judgment. It furnished all electrical materials and hardware necessary to the construction of the secondary lines except two transformers, both of which it installed. The transformers and the power pole were furnished to Cass by Electric Service. Electric Service had installed and maintained a neutral wire called a jumper, 42 from the top of the pole, for lightning protection. It was a ground wire. The jumper and one primary wire were used to connect with the transformer. This made it impossible to hang the tranformers above the secondary crossarm and still have ground.

Cass and Electric Service contend:

(1) that plaintiff was contributorily negligent as a matter of law,

(2) that these defendants had no duty toward plaintiff which could have been breached, and

(3) that plaintiff's claim against Cass was barred by the statute of limitations.

B. Questions for Review

We are confronted with three questions for review: (A) Was plaintiff guilty of contributory negligence as a matter of law? (B) Did each of the three defendants owe any duty to plaintiff? (C) Did the statute of limitations bar plaintiff's claim against Cass?

(A) An issue of fact exists as to plaintiff's contributory negligence.

(1) Facts Most Favorable to Plaintiff

The evidence is conflicting. We set forth the facts most favorable to the plaintiff.

On November 30, 1974, at the time of the accident, plaintiff, twenty-four years of age with a tenth grade education, was employed by Gary Electric as an electrician's helper. For a year prior to the accident, plaintiff assisted electricians, operated a pole digger and set up power poles used for transmission of electricity. More of the time he operated the pole digger to dig the hole for the poles and helped set up the poles. He had no prior experience with electrical work or electrician's work. He was just told to do what the electrician would tell him to do. At one time he had strung out wire on the secondary lines, but he did not connect the wire with the primary line because he didn't know how to climb a pole or how to make the connection. Two months before the accident he began to learn how to climb a pole. He climbed once under the supervision of an electrician and took a secondary line down.

On the morning of the accident, Mr. Gary told plaintiff and Joe Martinez, his employees, to go to the Wolfson oil well, take down the secondary lines, roll up the wire and bring it in. Gary told plaintiff all of the electric lines were dead and plaintiff believed the primary line was dead also. The power pole involved in this case had an overall length of 35 . It was a little over 28 from the ground to the top of the pole. A description of the upper portion of the pole from the west elevation is attached hereto. The primary lines were on top of the first crossarm. The secondary lines were between the first and second crossarms. The transformers were below the second crossarm. It was 17 6 from the ground to the top of the transformers and 37 from the transformers to the second crossarm. There were three cutouts which connect with the transformers. Two risers ascended from the left transformer, passed the second crossarm to the primary electric lines atop the first crossarm. The secondary lines were in close proximity to the risers. The primary lines, cutouts, and the risers were 'hot' lines. The secondary lines were dead. There was nothing 'hot' below the top of the transformer.

If anything was 'hot', plaintiff testified he would not have climbed the pole because he had never experienced a 'hot' line.

Before climbing, plaintiff knew how the 'primary' could be disconnected, but he did not actually notice that clamps were still tied to the hot line. He did not look up to see, but even if he had looked he could not tell whether the lines had electricity in them.

All that plaintiff remembers is that he was climbing the pole. He intended to loosen the three bolts for the secondary lines to cause the whole line to fall down. Martinez testified that plaintiff climbed to the top of the transformers. He was standing with his right foot on the south transformer, his left foot on the north transformer, and his right arm around the pole. As plaintiff attempted to raise his right leg over the cutout at the second crossarm, his left foot slipped and plaintiff fell into the center cutout, and then to the ground.

(2) Law on Summary Judgment

We do not repeat again by citation of authority all of the rules by which summary judgment is adjudicated.

We do not try an issue of fact. We only determine whether there is an issue of fact.

Summary disposition of negligence cases cannot be successful on appeal except in the clearest of cases, i.e., where we cannot give the party opposing the motion the benefit of all reasonable doubts in determining whether a genuine issue of material fact exists. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).

(3) A genuine issue of material fact exists

We differ on this Court on one question: Did the failure of plaintiff to look up to the top of the pole from the ground before climbing constitute contributory negligence as a matter of law? The answer is 'No!'

Plaintiff testified that even if he had looked from the ground before climbing the pole he could not tell whether the lines were electrified. Furthermore, his employer told him that the lines were dead. He had a right to rely upon the truth of that statement. This evidence is sufficient to establish a genuine issue of material fact. Crespin v. Albuquerque Gas & Electric Co.,39 N.M. 473, 50 P.2d 259 (1935); Wood v. Southwestern Public Service Company, 80 N.M. 164, 452 P.2d 692 (Ct.App.1969).

Defendants cited no authority to support their positions. They seek to distinguish Crespin. We disagree. In Crespin, plaintiff testified that he had been informed that the current in the electric wire had been turned off. He picked up the electric wire without thinking even though he knew that the line carried a heavy load of electricity. The Supreme Court held that plaintiff was not contributorily negligent as a matter of law.

The dispute on this Court arises over our interpretation of Wood. Defendants did not rely on this case. In Wood, decedent, sixteen years of age, lived in a trailer beneath a high voltage line. At night, during installation of a metal television antenna, the pole, 28 long, was raised, and it came into contact with the high voltage line. A friend of decedent, assisting him, testified that decedent knew that if he struck a metal object against an electric line, he would be shocked; that decedent knew there were some overhead power lines, but, in the dark, he could not judge the height; that he looked to see if the pole would clear the lines, but it did not. There was no claim and no evidence that decedent thought the line was not carrying an electric current. The trial court found decedent contributorily negligent as a matter of law. This Court affirmed even though decedent had not considered whether this particular electric line was dangerous.

Crespin was distinguished in Wood because Crespin had been told that the current had been turned off. Plaintiff in the instant case had been told the same thing. In Crespin, plaintiff picked up the wire 'without thinking'. In the instant case, plaintiff climbed the pole 'without looking' from the ground. This is a distinction without a difference because both plaintiffs were told the line was dead. By this distinguishing fact, plaintiff, Montanez, escapes the harsh rule set forth in Wood. See, Vanden Bosch v. Consumers Power Company, 56 Mich.App. 543, 224 N.W.2d 900 (1974).

We interpret Wood to mean that decedent voluntarily exposed himself to a known danger. This is an essential ingredient of contributory negligence. Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1971); McMullen v. Ursuline Order of Sisters, 56 N.M. 570, 246 P.2d 1052 (1952). In the instant case, plaintiff, not knowing of the danger involved, did not voluntarily expose...