Narvaiz v. F?

Decision Date25 February 1931
Docket NumberNo. 3461.,3461.
Citation296 P. 575,35 N.M. 303
PartiesNARVAIZv.SANTA FÉ, N. W. RY. CO.
CourtNew Mexico Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

Direction of verdict on untenable grounds may be affirmed, if proper for any legal reason presented.

The direction of a verdict will not be reversed, even if resting upon an untenable ground, but may be affirmed if it was proper for any legal reason presented that should have operated on the mind of the court.

Judgment on directed verdict should be affirmed, if appellant argues only one ground on which verdict is based, and judgment can be sustained on any ground argued by appellee.

Where a motion for a directed verdict presented several grounds therefor, and the appellant in his brief has only argued one of such grounds, and the appellee contends in his answer brief that the judgment of the lower court should not be reversed, if it could be sustained upon any of the grounds each of which he argues, and the appellant has filed no reply brief, and there has been no oral argument, the judgment should be affirmed.

Appeal from District Court, Bernalillo County; Helmick, Judge.

Action by Ocariz Frampton, for whom on her death was substituted Louis Narvaiz, as administrator of her estate, against the Santa Fé, Northwestern Railway Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Where a motion for a directed verdict presented several grounds therefor, and the appellant in his brief has only argued one of such grounds, and the appellee contends in his answer brief that the judgment of the lower court should not be reversed, if it could be sustained upon any of the grounds each of which he argues, and the appellant has filed no reply brief, and there has been no oral argument, the judgment should be affirmed.

O. A. Larrazolo and H. O. Waggoner, both of Albuquerque, for appellant.

Raymond R. Ryan, of Albuquerque, for appellee.

BICKLEY, C. J.

Action was commenced by Ocariz Frampton, widow of David Frampton, as preferred beneficiary under section 36-101, 1929 Comp. (N. M. Stats. Anno. 1915, § 1820).

At the conclusion of plaintiff's case, defendant moved for an instructed verdict upon ten distinct grounds. The motion was sustained generally, the court stating:

“I have listened very carefully to the argument. I think the motion will have to be sustained. Without going into all of the reasons, I think it has to be sustained if for no other reason, because of the Candelaria Case (Candelaria v. A., T. & S. F. Ry. Co., 6 N. M. 266, 27 P. 497), and the position the Supreme Court of this state has taken on this question, which case is binding here.”

To this ruling a general exception was taken. The court thereupon directed a verdict in favor of the defendant, which verdict was returned by the jury. This was followed by judgment for defendant, in which it is recited that defendant had “moved the court for a directed verdict in favor of defendant because such evidence was insufficient to support a verdict in favor of the plaintiff.”

Appellant says in his brief that there is but one legal proposition to be considered and solved in this case, to wit:

“Was the defendant railroad company required under the law to exercise the care and caution for the safety and protection of the deceased that the law demands of railroad companies in the transportation of passengers who pay the established fare on such railroads, or was the deceased a trespasser on the defendants' railroad train for whose transportation and safety the defendant assumed no responsibility whatever?”

Appellant asserts that the evidence established that, for a long time previous to the accident that resulted in the death of David Frampton, it had been, and at that time was, the custom and practice of said railroad company to carry and transport free of charge, from Bernalillo on the main line of the Santa Fé to a logging camp and intermediate points and back, all persons that wanted to use the defendant's logging trains, free of charge, and without any objection on the part of the defendant and its employees, etc. Counsel for appellant cite many authorities to the point that mere nonpayment of fare or gratuitous carriage will not of itself deprive a traveler of his right of action for the result of negligence of the carrier. Defendant answered the complaint of plaintiff with the following, among other allegations:

“Further answering said paragraph two of said amended complaint, this defendant says that on the 23rd day of November, 1925, and for some two or three months prior thereto, it had been conducting and operating a logging road in the County of Sandoval from the town of Bernalillo, in said county, to the forests of The White Pine Lumber Company, a distance of forty odd miles from Bernalillo, and on said day it was not a common carrier, or engaged in the transportation of freight or passengers, except the hauling of logs for The White Pine Lumber Company.”

The motion for a directed verdict challenged the sufficiency of the proof to establish that defendant was a common carrier of any kind, or a common carrier of passengers, and as being insufficient to show that the injury purporting to have caused the death of the deceased, David Frampton, was caused by defendant by reason and in respect of the operation of its line of railroad as a common carrier; that there was...

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