Scott v. McWood Corp.

• Decision Date: 21 June 1971
• Docket Number: No. 9186,9186
• Citation: 82 N.M. 776,1971 NMSC 68,487 P.2d 478
• Parties: Lloyd SCOTT and J. K. Scott, individually and Lloyd Scott, d/b/a Scott Brothers Drilling Company, Plaintiffs-Appellants and Cross-Appellees, v. McWOOD CORPORATION, Defendant-Appellee and Cross-Appellant.
• Court: New Mexico Supreme Court

Page 478

487 P.2d 478

82 N.M. 776

Lloyd SCOTT and J. K. Scott, individually and Lloyd Scott d/b/a Scott Brothers Drilling Company Plaintiffs-Appellants and Cross-Appellees, v. McWOOD CORPORATION, Defendant-Appellee and Cross-Appellant.

No. 9186.

Supreme Court of New Mexico.

June 21, 1971.

Rehearing Denied Aug. 3, 1971.

Paul A. Phillips, Rodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Albuquerque, for appellants

White & Caton, Farmington, Keleher & McLeod, William K. Stratvert, Ranne B. Miller, Albuquerque, for appellee.

OPINION

COMPTON, Chief Justice.

This is the second time this case has been before this court. Scott v. Murphy Corporation, 79 N.M. 697, 448 P.2d 803. The first trial resulted in a jury verdict for the appellee. Upon appeal, this court reversed the judgment due to an erroneous instruction and remanded the cause for a new trial.

The action was brought in San Juan County to recover damages for personal injury and property damage sustained as a result of an oil field fire. The jury returned a verdict for appellants in the amount of $128,000.00, however, a judgment notwithstanding the verdict was entered. The plaintiffs have appealed, and the defendant has cross-appealed.

The main question is whether appellants, J. K. Scott and Scott Brothers Drilling Company, were contributorily negligent as a matter of law. In granting judgment notwithstanding the verdict, the trial court held:

'* * * that the employees of Scott Brothers Drilling Company, while acting in the course and scope of their employment, were contributorily negligent as a matter of law and their contributory negligence is imputed to J. K. Scott, individually, as a matter of law and that J. K. Scott, individually, was contributorily negligent as a matter of law; therefore all plaintiffs are barred from recovery.'

In testing the propriety of a judgment notwithstanding the verdict, the evidence favorable to the successful party, together with all inferences as may be reasonably drawn therefrom, will be accepted as true and all evidence to the contrary will be disregarded. Zanolini v. Ferguson-Steere Motor Company, 58 N.M. 96, 265 P.2d 983.

We stated in Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364, that:

'Ordinarily, the question of contributory negligence is a fact question to be determined by the jury. * * * The question of contributory negligence is properly taken from the jury only when reasonable minds cannot differ on the question and readily reach the conclusion that plaintiff's conduct falls below the standard to which he should have conformed for his own protection, and that this negligent conduct on his part proximately contributed with the negligence of the defendant in causing the injury. * * *'

See also Wood v. Southwestern Public Service Company, 80 N.M. 164, 452 P.2d 692 (Ct.App.).

In May, 1963, J. K. Scott and Lloyd W. Scott, d/b/a Scott Brothers Drilling Company, entered into a contract to drill an oil well for Murphy Corporation to be located in a boxed canyon approximately 100 feet wide. On June 3, 1963, following the taking of a core sample, the well was to be circulated with crude oil in order to remove cuttings and waste materials from the drill hole. As a part of this process, employees of Scott Brothers had dug a sump approximately 8 feet from the drill hole and placed a metal tank into it to hold the oil. The sump was located close to the drilling rig that was being operated by Scott Brothers. Shortly before the fire broke out, a tank truck, owned by appellee, arrived loaded with approximately 100 barrels of crude oil to be used as the circulation medium. It was parked approximately 8 feet from the drill hole on the opposite side from the sump tank. J. K. Scott was in charge of the drilling crews and immediately under him were Scott Brothers' employees Hahn and Johnston, the actual drillers.

It was discovered that the appellee's driver, Warren, did not have enough hose on the truck to reach from the truck's location to the sump tank. A discussion was had between Hahn, Johnston and Warren and it was decided to pump the oil through an open ditch to the sump. Warren opened the vent hatches on the tanker truck and began pumping oil by use of the pump on the truck operated by the truck's engine. The truck was not grounded at any time by Warren. After approximately 5 barrels were in the sump, Hahn began operating the suction pump run by the motor on the drilling rig, to draw oil into the well head. Shortly after this process had begun, the well head 'belched' indicating that circulation had been obtained and Hahn cut down the pump to let the oil settle in the hole. When the hole 'belched' again, the pump was stopped. Suddenly, there was a whoosh and a flash and the whole area was afire. J. K. Scott had arrived on the scene only 2 or 3 minutes before the fire and was severely burned. The evidence indicates that the fire may have occurred from static electricity which ignited the highly volatile crude oil vapors and fumes which had accumulated in the narrow canyon surrounding the well location during the circulation process; nevertheless, the evidence was in conflict as to where the fire started and what started it.

Appellants' initial contention is that any causal connection between Scott's and/or Scott Brothers' conduct and the resulting injury and damages was a jury question. We must agree; whether the contributory negligence of the appellants contributed as a proximate cause of the injury complained of was an issue of fact. Compare White v. Montoya, 46 N.M. 241, 126 P.2d 471; Maryland Casualty Company v. Jolly, 67 N.M. 101...