Primus v. City of Hot Springs

• Decision Date: 08 May 1953
• Docket Number: No. 5536,5536
• Citation: 57 N.M. 190,256 P.2d 1065,1953 NMSC 34
• Parties: PRIMUS et al. v. CITY OF HOT SPRINGS.
• Court: New Mexico Supreme Court

Page 1065

256 P.2d 1065

57 N.M. 190

PRIMUS et al. v. CITY OF HOT SPRINGS.

No. 5536.

Supreme Court of New Mexico.

May 8, 1953.

Jess R. Nelson, Truth or Consequences, for appellant.

Simms, Modrall, Seymour & Simms, James E. Sperling, George T. Harris, Jr., Albuquerque, for appellee.

McGHEE, Justice.

In this case the administrator sought damages for the death of Mary Primus McDaniel who left surviving her three infant children. Her death occurred when the automobile in which she was a passenger failed to stay within the traveled portion of a street while making a turn immediately prior to entering onto a portion of the street so narrow it is questionable whether two cars could meet and pass. On one side of the street there was a high bank, and on the other side was a sandy arroyo. The car got too close to the arroyo and overturned, killing Mrs. McDaniel, as above stated.

At the conclusion of the plaintiff's case the defendant city moved for judgment on the following grounds:

1. The plaintiff had not made out a case of negligence on the part of the city.

2. There was a failure to offer proof that Primus was the administrator, and such fact was not pleaded.

3. It had not been shown the street in question was a dedicated street in the City of Hot Springs.

One of the attorneys for the plaintiff then stated the failure to offer proof as to the status of Primus was an oversight.

The other defendants, except Clayborn, the driver of the car, likewise moved to dismiss upon the same grounds.

The plaintiff then moved to reopen to prove the appointment and qualification of Primus as administrator, and to prove by plats the street in question (Pine) was a dedicated street in the City of Hot Springs. When asked if the defendants had any objection to such application, one of the attorneys for the city replied only that he thought it was a very essential part of the plaintiff's case. The trial judge then made the statement that he found, as a matter of fact, the plaintiff had not made out a case of negligence against the city and the third party defendant Burns. The plaintiff again moved for permission to reopen and present the two matters of proof above mentioned, however, the trial judge replied the case had been closed so far as the proof was concerned--to which the plaintiff duly excepted.

We will first dispose of the error assigned because of the failure of the trial court to allow the plaintiff to reopen to make this formal proof. We feel its action in this regard was a clear abuse of its discretion, and it must have been caused by a belief such proof would only encumber the record because of what it deemed a failure of proof.

It may not be amiss to here state the real plaintiffs were the three infants, and it was the duty of the trial court to see their interests were protected, and not to permit the case to be prejudiced by counsel overlooking the necessity for offering proof of the kind here involved. Haden v. Eaves, 1950, 55 N.M. 40, 226 P.2d 457. At any rate, the court erred in refusing to allow the reopening of the case for the purpose stated.

We will next turn to a consideration of the claim the trial court erred in sustaining the motion of the defendant city that the plaintiff had failed to make out a case of negligence against it.

We begin our consideration of this question mindful of the fact that at the stage of the case when the motion was made all testimony in favor of the plaintiff had to be considered as true, as well as all inferences favorable to him which could be drawn therefrom. Williams v. City of Hobbs, 1952, 56 N.M. 733, 249 P.2d 765; Paulos v. Janetakos, 1937, 41 N.M. 534, 72 P.2d 1; Davis & Carruth v. Valley Mercantile & Banking Co., 1928, 33 N.M. 295, 265 P. 35.

Briefly summarized, the facts which we feel required the trial court to deny the motion when made are:

The driver of the car in which decedent was riding was making his first trip over the street in question. The accident occurred just as it was turning light and it was most difficult to see. The road had rocks in it and was wider at each end than at the narrow place in the middle. There was a high, sandy hill, impregnated with rocks and boulders on one side of the street, and a sandy, unguarded arroyo on the other, wholly without warning signs. Two city policemen testified the street was dangerous to travel, and one said it was especially dangerous when the light was bad or one was not familiar with te condition of the road. Captain Tafoya of the state police, then stationed in Hot Springs, also testified to the dangerous condition of the road. One policeman testified he reported the dangerous condition to the Chief of Police of the city, and that barricades were put up by the city, but were taken down by someone unknown to him; that after such removal the barricades were again erected at the street and were again taken down, but he did not know who put them up or took them down. It appears this erection and removal of the barricades went on for several weeks, and then the unfortunate accident occurred. It also appears there were no warning signs of any kind on the street to warn those having occasion to travel thereon. The pictures of the street where the accident occurred also lend support to the plaintiff's case.

This, we think, was sufficient to make out a prima facie case against the city for having a dangerous street and leaving it open to the public.

A municipal corporation is required to exercise ordinary care to maintain its streets in a reasonably safe condition for travel in the usual modes by day and night. 19 McQuillin, Municipal Corporations (3rd Ed.) Sec. 54.90.

A municipality which has full and complete charge of its streets (and they have such charge in New Mexico except over state highways)...