Padilla v. Winsor

• Decision Date: 30 July 1960
• Docket Number: No. 6588,6588
• Citation: 354 P.2d 740,1960 NMSC 82,67 N.M. 267
• Parties: Jose C. PADILLA, Plaintiff-Appellee, v. M. O. WINSOR and N. O. Brane, as ancillary executors of the Last Will and Testament of E. C. Winsor, Deceased; and M. O. Winsor, Individually, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 740

354 P.2d 740

67 N.M. 267

Jose C. PADILLA, Plaintiff-Appellee, v. M. O. WINSOR and N. O. Brane, as ancillary executors of the

Last Will and Testament of E. C. Winsor, Deceased;

and M. O. Winsor, Individually,

Defendants-Appellants.

No. 6588.

Supreme Court of New Mexico.

July 30, 1960.

Rehearing Denied Sept. 9, 1960.

Robertson & Skinner, Raton, Krehbiel & Alsup, Clayton, for appellants.

Robert A. Morrow, Raton, for appellee.

MOISE, Justice.

Plaintiff, Jose C. Padilla, sued in two counts for injuries allegedly suffered while he was employed as a ranch hand by E. C. Winsor and his wife, M. O. Winsor. E. C. Winsor, having died, M. O. Winsor and N. O. Brane, as ancillary executors of his estate, are joined as defendants with M. O. Winsor, individually.

In the complaint it is alleged that E. C. Winsor and wife, M. O. Winsor, were the operators of a ranch in Union County, New Mexico; that on or about September 1, 1955, the plaintiff, Jose C. Padilla, was employed to work on the ranch; that the employers agreed to furnish plaintiff all ranch equipment, including the necessary saddle horses, broken to ride; that, in fact, plaintiff was furnished a scary, unreliable, undependable, unpredictable and unsafe horse that would at times without warning and without apparent cause go into a bucking spell, all of which was known to E. C. Winsor and in this defendants were negligent; that no or about Nobember 21, 1955, the plaintiff, while performing his duties, was thrown from one of the horses provided by E. C. Winsor, when the horse suddenly started bucking and threw him to the ground injuring him seriously and requiring medical and hospital care and expense, and causing 'permanent partial disability from which he will never recover.'

The defendants answered by way of denial of material allegations and pleaded the affirmative defenses of contributory negligence and assumption of risk.

The case was tried to a jury and resulted in a $5,000 verdict in favor of plaintiff. From the judgment entered pursuant thereto this appeal is prosecuted.

At the close of plaintiff's evidence on the trial, defendants moved for a directed verdict in their favor on the ground the plaintiff had failed to prove negligence, and on the further ground that the evidence showed plaintiff had assumed the risk and was contributorily negligent. This motion was overruled. Thereafter, at the close of the entire case, the motion was renewed and overruled. Also, a motion for judgment notwithstanding the verdict or for a new trial was timely filed setting up generally the same grounds and it was overruled by the court.

Error in overruling these various motions is complained of here. Thus is presented generally the question of the sufficiency of the proof to require submitting to the jury the issue of whether or not the Winsors were negligent, the burden of proof therefor being on plaintiff, and the additional question of whether the evidence presented an issue for the jury as to plaintiff having assumed the risk or being contributorily negligent, the burden of establishing the same being on defendants.

In passing upon questions such as are presented here, where the jury has considered the case and returned its verdict in effect finding negligence on the part of defendants and an absence of contributory negligence or assumption of risk by plaintiff, the court must view the evidence in the most favorable light to support the verdict, and before reversing must be convinced that the verdict cannot be sustained either by evidence or inferences therefrom. Chandler v. Battenfield, 55 N.M. 361, 233 P.2d 1047; Amaro v. Moss, 65 N.M. 373, 337 P.2d 948; Addison v. Tessier, 62 N.M. 120, 305 P.2d 1067; Adams v. Cox, 55 N.M. 444, 234 P.2d 1043.

Approaching the testimony with this rule in mind, we relate as briefly as possible what was proven, exclusive of the proof as to the injuries and damages suffered, these items not being material to this appeal.

In August, 1955, when plaintiff went to work for the Winsors he was 53 years of age and had been a rancher all his life including riding horses. Some time about August 15, 1955, he took a job at the Winsor ranch to do general ranch work. On September 1, 1955, he moved his family to the ranch, and they were furnished a place to live. The Winsors had two riding horses on the ranch, one named Elmer and one named Trigger. Trigger had been acquired and used as a saddle horse since 1952. Plaintiff was instructed to ride one of them one day and other the next, alternating them. At the time plaintiff went to work, he inquired about riding horses and was told there were two horses on the ranch and that they were gentle. Plaintiff told Mr. Winsor he had two horses that he was used to that he would like to bring over for his own use, and for which he would make no charge. Mr. Winsor indicated this would be satisfactory but nothing was ever done to bring the horses to the Winsor ranch even though several later requests to have it done were made by plaintiff's wife to Mrs. Winsor, the last of these requests being as late as the evening before the accident. Also, although Mr. Winsor had indicated plaintiff's horses could be brought for plaintiff's use, at a later time Mrs. Winsor stated that the two horses there were adequate, and they did not have enough grass for additional animals. However, she also indicated the decision in this regard was not final.

From the time of his employment about August 15, 1955, to the date of the accident, November 21, 1955, the plaintiff rode both Elmer and Trigger almost daily, alternating them as per his instructions. He preferred Trigger because Elmer was prone to stumble, and he considered Trigger a better horse, gentle, and easier to handle if he had to be loaded into a pickup in the pasture.

Plaintiff testified concerning one incident of difficulty with Trigger prior to the date of the accident, and concerning Mr. Winsor's knowledge, as follows:

'Q. Mr. Padilla, now, about the horses, did you have occasion, in connection with your working with the particular horse in question, in cattle operations around the corral, and have an occasion in which that horse bucked and started to throw you? A. Yes, sir.

'Q. Prior to the accident we're talking about? A. Yes, sir.

'Q. Tell the jury about that. A. Well, one morning we was going to deliver cattle, and Mr. Boots, Harlan Boots, was there and another buyer, and I saddled the horses, the one that I used and Mr. Winsor, so Mr. Winsor left and told me which direction to go, so when I took my horse out of the corral, that I get on him, he didn't want to go, so I just push him with my legs to make him go, and he didn't want to go so I just try to make him go and he try to started bucking and went right straight on to the corner of the corral and the barn and when I see that I didn't have no chance, I just jumped down.

'Q. And then what did you do? A. So I tie that horse there in the corral and went and in the saddle room and get my spurs, and when I put on my spurs, Mr. Harlan told me, 'you better bring that horse in the corral.' I told him, 'Yes, that's what I'm going to do' so I just put on my spurs and get the horse and in the corral and ride him, trying to make him straight up, so I ride him a little while there and then when I get ready, I tell Mr. Harlan Boots to open the gate and I went on and helped Mr. Winsor bring those cows.

'Q. Did you tell Mr. Winsor about your experience with the horse that morning and what the horse did? A. Yes, when we was driving the bunch I told Mr. Winsor that Trigger had throwed me down and we began to talk about him, and he said that he throwed him once, too, but I didn't pay much attention to the old man because Mr. Winsor used to use just one spur, and I thought that he had catched the horse with a spur and that's what make him buck, so I didn't pay much attention that the horse was mean.

'Q. But Mr. Winsor did tell you that the horse had thrown him? A. Yes, one day that he and Severda was working cattle he said that horse started bucking without reason, but I kind of jumped Mr. Winsor that he had hooked him with a spur.'

And on cross-examination he testified concerning this incident, as follows:

'Q. (By Mr. Skinner:) Before, when you say he bucked and threw you off, you were wearing your spurs when you first got on the horse that day? A. No.

'Q. You weren't A. No.

'Q. You are sure? A. Why, sure, because when I get on the horse and didn't want to go, I just push him with my legs and he didn't want to go so I just climb in the corral and tie him in the corral and went and got my spurs, and when I ride him the second time, he sure he started bucking, and when he go to the corner of the corral, I jump off.

'Q. All right, you had your spurs on when he started bucking, right? A. Yes.

'Q. He wouldn't go at first so you got off and got your spurs and got on him and then you say he bucked for a few moments? A. Yes.'

Nothing appears in the record indicating that Trigger was not gentle except only the incidents related above, and the occasion on November 21, 1955, when plaintiff testified he was riding him looking for a cow and had ridden some quarter to half a mile and this 'horse was riding pretty good, suddently he just start bucking up the hill and when he turned back down the hill bucking with me, he throw (sic) me right flat on my back on the ground.'

Are these facts sufficient upon which to base a finding of negligence and an absence of contributory negligence and no assumption of risk, or at least to require their submission to the jury for answer?

The rules to be applied in the trial of a case to determine if a question of negligence should be submitted to the jury or a verdict directed have been stated many times by this Court. In the case of American Ins. Co. v. Foutz and Bursum, 60 N.M. 351, 291 P.2d 1081, 1087, the following quotation was stated to pronounce the correct rule:

'Where...