Selby v. Tolbert, 5464
| Decision Date | 22 October 1952 |
| Docket Number | No. 5464,5464 |
| Citation | 1952 NMSC 96,56 N.M. 718,249 P.2d 498 |
| Parties | SELBY v. TOLBERT et al. |
| Court | New Mexico Supreme Court |
W. C. Whatley, W. B. Darden, LaFel E. Oman, Las Cruces, for appellants.
T. K. Campbell, Las Cruces, for appellee.
Upon consideration of motion for rehearing, the former opinion is withdrawn and the following substituted therefor:
The plaintiff, an eight year old boy, by next friend, his father, sues for damages for injuries arising out of the negligence of the defendants, Tolbert-Barron-Lowenhaupt, in causing a burned out semi-trailer to be placed on a vacant lot in such manner as to constitute an attractive nuisance and cause injury to the plaintiff as the result of his playing near and on it. The defendant appeals from judgment awarding $1,230.65 to the plaintiff.
The defendants, Tolbert-Barron-Lowenhaupt, are a firm of independent insurance adjusters doing business in El Paso, Texas. On May 30, 1948, a van-type, refrigerated trailer belonging to one Art Kashmer of Brownsville, Texas, was damaged by fire on the highway eight miles west of Las Cruces, New Mexico, and left there. The defendants were contacted by a firm of adjusters in Chicago and asked to take care of the matter. Subsequently the defendants asked Marion Pritchett, a garage operator in Las Cruces, to obtain removal of the trailer to a safe place. Pritchett was without proper equipment to remove the trailer and so informed the defendants, stating he could get Guy Reed, an experienced heavy equipment mover, to do the job. Reed placed the trailer on a dolly and moved it to an empty lot in Las Cruces. The lot adjoined a lot leased by Laws and Son for their petroleum distributorship. Laws and Son later purchased the lot and gravelled it, but at the time the trailer was placed on it the lot belonged to another party and was seldom used for any purpose because of its terrain. The trial court found that Laws and Son were not guilty of negligence in any manner, and no appeal is taken from that portion of the judgment.
The trailer was parked on the lot, near the street, and left on a dolly, braced by beams. On July 7, 1948, the plaintiff, in company with other children, was in front of a church across the street from the trailer while his parents attended church. The father of the plaintiff had admonished him not to cross the street and go near the trailer. The plaintiff and the other children did, in fact, cross the street and begin to play near the trailer. The plaintiff was attracted by the trailer and particularly attracted to the rear end of it where there were melted remnants of the red tail lights. The plaintiff touched a tail light and the trailer tipped over on him, pinning him beneath it and fracturing his leg. In this action he sought to recover medical and hospital expenses and damages. The case was tried to the court without a jury.
The defendants challenge the ruling of the trial court that they must respond in damages as principals for the negligent acts of their agent in placing the trailer on the lot, asserting that Guy Reed in effecting the removal of the trailer from the highway to the vacant lot was acting not as their agent, but as an independent contractor.
If this was meant to be a defense to plaintiff's action as tried below, the record poorly suggests the fact. The pleadings fail even to mention the phrase 'independent contractor' if, indeed, it must be pleaded as a defense, a matter we do not determine. The issue is not hinted at in objections to testimony adduced at the trial or in other rulings made. Nor is the finding of agency in Guy Reed objected to in any way. No findings or conclusions touching the issue of independent contractor are requested, or made. The phrase 'independent contractor' appears for the first time in defendants' brief on appeal. It is now too late to attempt to inject the issue. Any objections which might have been made by the defendant must be deemed to have been waived. Rule 52(b)(6), Rules of Civil Procedure; Chavez v. Chavez, 1950, 54 N.M. 73, 213 P.2d 438; Teaver v. Miller, 1949, 53 N.M. 345, 208 P.2d 156; Rubalcava v. Garst, 1949, 53 N.M. 295, 206 P.2d 1154; Hardy v. Clark, 1940, 44 N.M. 590, 106 P.2d 854; Wells v. Gulf Refining Co., 1938, 42 N.M. 378, 79 P.2d 921.
The trial court found (1) that the agents of the defendants parked the trailer in a dangerous, careless and negligent manner and that by reason of the trailer's burned condition, structure and appearance it was attractive to children of tender years in general, and calculated to and did arouse their childish curiosity and desire to play thereon and, therefore, constituted an attractive nuisance, (2) that the plaintiff was attracted thereto and by reason of his tender years did not appreciate the danger, and being unable to resist his natural inclination to play thereon was injured while so doing, (3) that the defendants, by their agent, created a dangerous condition by parking the trailer in the manner stated, and that the agent should have known by the exercise of ordinary prudence that the trailer was parked in a dangerous manner, and (4) that the proximate cause of the plaintiff's injuries was the negligent, careless and dangerous manner in which the defendants parked the trailer and permitted it to remain.
The parent case of the attractive nuisance doctrine is the English case of Lynch v. Nurdin, 1 Q.B. 29, 113 Eng.Rep. 1041 (1841), where the owner of a horse and cart was held liable for injury to a six year old boy who wrongfully boarded the cart and was injured when a playmate led the horse away. There the defendant maintained recovery was barred by the wrongful act of the plaintiff, but the court answered by analogy to instances where an owner of property may be liable for injuries to trespassers, such as the spring-gun case of Bird v. Holbrook, 4 Bing. 628, 130 Eng.Rep. 911 (1828). The court held the defendant was negligent and stated that the plaintiff merely indulged his natural childish instincts, having been tempted by the negligence of the defendant's servant.
In the United States the doctrine has been applied to railroad turntables, ponds, automobiles, lumber piles and machinery. For a collection of cases see annotations in 36 A.L.R. 34 and 9 N.C.C.A. (N.S.) 489.
The court have not applied consistent tests for the application of the doctrine, nor are the theories of liability free from confusion. Various theories of liability advanced include intent to injure, wantonness, maintenance of a trap or concealed danger, or implied invitation. The Restatement of Torts, Sec. 339, p. 920, in an attempt to clarify the rules, states 'A possessor of land is subject to liability for...
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...As to what is negligence on the part of a child 14 years of age see Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507; Selby v. Tolbert, 56 N.M. 718, 249 P.2d 498; Jacobs v. H. J. Koehler Sporting Goods Co., 208 N.Y. 416, 102 N.E. 519, L.R.A.1917F 7 and the note in 1917F 10, 22 (note 33), and......
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1998 -NMSC- 7, Carmona v. Hagerman Irrigation Co.
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