Reed v. Styron

• Court: New Mexico Supreme Court
• Writing for the Court: NOBLE; COMPTON, C. J., and CHAVEZ; NOBLE; COMPTON, C. J., and CHAVEZ
• Citation: Reed v. Styron, 69 N.M. 262, 365 P.2d 912, 1961 NMSC 119 (N.M. 1961)
• Decision Date: 21 August 1961
• Docket Number: No. 6802,6802
• Parties: Paul REED and Montgomery Ward & Company, a corporation, Plaintiffs-Appellants, v. Thomas G. STYRON, d/b/a Styron Construction Company, a corporation, Defendant-Appellee.

Page 912

365 P.2d 912

69 N.M. 262

Paul REED and Montgomery Ward & Company, a corporation Plaintiffs-Appellants, v. Thomas G. STYRON, d/b/a Styron Construction Company, a corporation, Defendant-Appellee.

No. 6802.

Supreme Court of New Mexico.

Aug. 21, 1961.

On Motion for Rehearing Nov. 1, 1961.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellant Reed.

Botts, Botts & Mauney, Albuquerque, for appellant Montgomery Ward & Co.

Keleher & McLeod, Albuquerque, for appellee.

NOBLE, Justice.

This appeal results from a jury verdict for defendant in an action for injuries received by plaintiff in falling down a stairway in the Albuquerque store of Montgomery Ward & Company. We shall refer to the parties as they appeared in the lower court except that Montgomery Ward & Co. will be referred to as 'Wards.'

The stairway connecting the second and third floors had become worn, and defendant, an independent contractor, had been employed by Wards to repair the stairs. Defendant placed new stair treads of fir boards over the worn treads. Plaintiff was a salesman in the hardware department in the basement. Needing garden hose for his department, he used the elevator to go to the third floor storeroom where he got three lengths of hose, carrying two of them over his right arm and the third in his left hand, returning by way of the stairway which had recently been repaired. Upon descending three or four steps, the outside edge of one of the steps broke off causing plaintiff to fall sprawling to the next landing and resulting in injuries to plaintiff's back. Wards joined as a plaintiff to recover the compensation paid by them to plaintiff under the Workmen's Compensation Act.

The case was tried on the issues of defendant's negligence, contributory negligence and assumption of risk on the part of the plaintiff, and the contributory negligence of Wards.

A decisive point relied upon by plaintiff Reed for reversal is the claimed error in submitting to the jury the issue as to whether plaintiff should be denied recovery under the doctrine of voluntary assumption of risk. Plaintiff asserts that it has no quarrel with the language of the instruction on assumed risk, but contends that there is no evidence to warrant the giving of the instruction at all and that giving it resulted in prejudicial error.

We call attention at the outset that many writers criticize the doctrine of assumption of risk, at least in the absence of a contractual relationship or that of master and servant. See Harper & James, the Law of Torts, Vol. 2, Sec. 21.8 at page 1191, where the criticism is summarized. That the doctrine is confined to cases arising out of her relation of master and servant or at least to those based upon contract, has some support in this jurisdiction in Rutherford v. James, 1928, 33 N.M. 440, 270 P. 794, 63 A.L.R. 237. That decision has apparently been generally overlooked and not followed by later decisions of this court. We have found Rutherford considered only in Tyler v. Dowell, Inc., 10 Cir., 274 F.2d 890, where a direct answer to the question was not given. Since Rutherford, this court has assumed, without discussion, that assumption of risk is available as a defense in many types of cases. See Zamora v. Smalley, 68 N.M. 45, 358 P.2d 362; Bogart v. Hester, 66 N.M. 311, 347 P.2d 327; Barakos v. Sponduris, 64 N.M. 125, 325 P.2d 712.

It has been held in the large majority of jurisdictions that applicability of the doctrine of assumption of risk, or its alias, volenti non fit injuria, does not depend on a master and servant or in fact, any type of contractual relation. Shearman & Redfield on Negligence, Vol. 1 (Rev.Ed.), Sec. 135; 38 Am.Jur., 'Negligence,' Sec. 171; Dec. Dig., 'Negligence,' Key Number 105. There is no valid basis for restricting the doctrine to such cases. As observed by Chief Justice Cardozo in Zurich Gen. Accident & Liability Ins. Co. v. Childs Co., 253 N.Y. 324, 171 N.E. 391, the principle should be applicable to any relation voluntarily assumed and such relation can exist with or without contract. If there be any doubt that the rule regarding assumption of risk, announced in Rutherford v. James, supra, has been abandoned in this jurisdiction, it is here expressly overruled.

We recently set forth in Padilla v. Winsor, 67 N.M. 267, 354 P.2d 740, the elements necessary to bar recovery under the doctrine of assumption of risk as: (1) the plaintiff must know of the defect, (2) appreciate the danger, and (3) voluntarily assume the risk. He is presumed to know and take notice of those risks and defects which are obvious, but he does not assume the risk, at least as a matter of law, of a latent danger of which he is unaware.

It is charged that the negligence of the defendant consisted in placing a fir board over the old treads; that the new boards were not strong enough for the purpose; and, that defendant had not placed a moulding under the overhanging portion of the new tread to support weight on its outer edge.

Thus, the danger or risk that plaintiff is claimed to have assumed was that of the treads on the stairs breaking off when stepped on. Surely, such a risk or danger is not one inherent in a stairway which one assumes merely by using a stairway. On the contrary, as an employee on the premises of his master, he was free to assume that the stairs, in general use, were reasonably safe to walk upon. Fishburn v. International Harvester Co., 157 Kan. 43, 138 P.2d 471; Safeway Stores, Inc. v. Phelps, 201 Ark. 495, 145 S.W.2d 337; Shearman & Redfield on Negligence, Vol. 2 (Rev.Ed.), Sec. 226.

It is not contended that plaintiff had actual knowledge of the defect when he started to descend the stairway. The defect was not one inherent in stairs in general of which plaintiff should have had knowledge. Were there surrounding circumstances making the danger in this instance so obvious that he must be deemed to have known it?

A party is entitled to an instruction on his theory of the case if such theory is pleaded and supported by evidence. Terry v. Biswell, 66 N.M. 201, 345 P.2d 217; Salazar v. Garde, 35 N.M. 353, 298 P. 661; Stewart v. Oberholtzer, 57 N.M. 253, 258 P.2d 369; Hanks v. Walker, 60 N.M. 166, 288 P.2d 699 and Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028.

Defendant relies upon the fact that baricades at the top and bottom of the stairs, used during the repair work, were visible although pushed aside and that the edges had been broken from some steps as establishing an unsafe condition of which plaintiff knew or had warning. Regarding the barricades, the uncontradicted evidence is that the stairway was barricaded during the repair work by a sawhorse placed across the stairway opening or by a rope or both a rope and sawhorse, but that at the time of the accident, the sawhorse had been removed and placed to one side and the rope or ropes were untied at one end and hanging from the other. It is not denied that the stairway at that time was in general use. As to the broken steps, it was testified that the protruding lip of several steps had broken and that one broke with a stockroom employee, but these facts were unknown by plaintiff. The testimony of the stockroom employee was to the effect that the broken steps should be obvious to one ascending the stairs but could only be discovered by one descending, by close examination and by comparing the width of the stair boards.

Plaintiff, who regularly worked in the basement, was using the stairs for the first time after their repair, and went to the third floor by the elevator. He had only descended three or four steps when the accident occurred. No conflicting evidence has been pointed out to us on these points.

'For the plaintiff to be barred under this doctrine it must be shown that he had knowledge of the dangerous condition which he was to encounter.'

Barakos v. Sponduris, supra, 64 N.M. at page 130, 325 P.2d at page 715. Since here, under the circumstances, the defect could only be discovered by one descending the stairs by a close inspection, it was not a patent danger of which plaintiff was bound to take notice. The doctrine of assumption of risk is not applicable under the facts. Barakos v. Sponduris, supra; Snodgrass v. Turner Tourist Hotels, Inc., 45 N.M. 50, 109 P.2d 775.

It is error to instruct on a proposition of law not supported by the evidence. Martin v. La Motte, 55 N.M. 579, 237 P.2d 923; Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507. We must assume that the jury considered the instruction and may have been misled to plaintiff's prejudice.

While the error in giving the instruction on assumption of risk is decisive of this appeal, we nevertheless discuss an additional point since a new trial on the issues will be required.

Two inter-connected grounds are urged for reversal: (1) that the jury was permitted to bar Wards' recovery for reimbursement under the Workmen's Compensation Act because of its own negligence, and (2) the instructions failed to distinguish between the plaintiffs Reed and Wards in their reference to 'plaintiff' so that the instructions were confusing and the jury may have been led to the mistaken belief that negligence of the plaintiff Wards would bar recovery of the plaintiff Reed. We are not satisfied that there was error in these instructions; but if there is confusion, let us try to dispel it.

The first part of the point is settled by our decision in Royal Indemnity Co. v. Southern California Petroleum Corp., 67 N.M. 137, 353 P.2d 358, in which it was held that Sec. 59-10-25, N.M.S.A.1953 Comp., is a reimbursement statute and provides a right of reimbursement for benefits paid under the Workmen's Compensation Act by an employer who is negligent or whose negligence concurs with that of a third person in causing the injury. There is only a single cause of action in the employee against the third person and the right of the compensation insurance carrier to reimbursement follows the...