Snider v. Town of Silver City, 5399

• Decision Date: 04 August 1952
• Docket Number: No. 5399,5399
• Citation: 247 P.2d 178,56 N.M. 603,1952 NMSC 77
• Parties: SNIDER et ux. v. TOWN OF SILVER CITY (Merriman, third party defendant).
• Court: New Mexico Supreme Court

Page 178

247 P.2d 178

56 N.M. 603

SNIDER et ux. v. TOWN OF SILVER CITY (Merriman, third party defendant).

No. 5399.

Supreme Court of New Mexico.

Aug. 4, 1952.

Royall & Royall, Woodbury, Shantz & Woodbury, Silver City, for appellant.

Hubert O. Robertson, J. R. Wrinkle, Silver City, for appellees.

SADLER, Justice.

The Town of Silver City, a municipal corporation, complains before us of a judgment rendered against it by the district court of Grant County in the sum of $7,640 in favor of the plaintiffs (appellees) by reason of property damage found to have been sustained by them in a gas explosion which destroyed certain auto cabins and items of personal property described in the complaint. The trial was before the court without a jury and the defendant Town feeling aggrieved by the judgment prosecutes this appeal.

On the 15th of March, 1949, the Town of Silver City had a crew of workmen engaged in digging a trench for laying a sewer line north on Canal Street within the corporate limits of the town. The line for the trench carried it some fifteen feet west of a tier of auto cabins owned and operated by plaintiffs. Gas and water lines already were located in Canal Street. In the course of the operation the power driven trenching machine being used to dig the trench, called a 'drag hoe,' snagged the gas pipe line and bent it at the point of contact resulting in a break at a 45~ elbow under the west foundation of the center cabin of the three involved, which had been constructed and were being operated by the plaintiffs.

In the explosion which followed the break in the gas line, the occupant of the middle or center cabin in the tier of three was killed. A suit for damages followed which was compromised in the course of trial and an agreed judgment for $7,500 entered against the Town of Silver City, the defendant in the present action. The suit mentioned was by J. D. Merriman, as administrator of the estate of Bernal Hellier, deceased, as plaintiff, against the Town of Silver City, as defendant, which appeared also as a third party plaintiff by impleading as third party defendants one of the present plaintiffs, Lillian M. Snider and the heirs of Bert M. Snider, who prior to his decease, was also plaintiff in the present cause. As in that action the Town of Silver City is the principal defendant in the present suit, the original plaintiffs being Bert M. Snider and Lillian M. Snider, his wife. In the present action, the Town of Silver City appears also as a third party plaintiff by impleading J. D. Merriman, as administrator of the estate of Bernal Hellier, deceased, as a third party defendant and prays recovery over against such defendant of one-half of the damages, if any, awarded against it, just as in other action, as a third party plaintiff, it had asked recovery over against the Sniders as third party defendants of one-half the amount of any damages awarded against the town as the primary defendant. The two suits were numbered 12,194 and 12,195, respectively, on the civil docket of the district court of Grant County, the one bearing the lower docket number being the one in which an agreed judgment based on a compromise was entered.

While the crew of workmen operating the trench digging machine were working in close proximity to plaintiffs' cabins and between 10 and 10:30 o'clock in the forenoon of the date mentioned above the machine snagged the gas pipe line, pulling and bending it and jerking a portion thereof from the ground. Immediately thereafter the gas pressure in each of the two end cabins of the tier was noticeably reduced and the odor of escaping gas could be detected outside the cabins in the vicinity where defendant's servants and employees were working. The occupants of two of the cabins discussed the lack of gas pressure in the cabins occupied by them in a tone of voice sufficiently loud for such employees to hear the conversation. Shortly thereafter one of defendant's employees in the presence of other workmen struck a match and held it down near the pipe line where it was exposed by the snagging at a point nearest the cabins. Immediately a flash of fire was caused by the escaping gas. It was put out by one of the workmen throwing dirt on it. Notwithstanding the foregoing evidences of a leak or break in the line, nothing was done by any of the defendant's employees to prevent the escape of gas or to locate the leak in the pipe line. Soon, thereafter, all members of the work crew left for lunch without having notified the gas company of the possible leak or break in the gas line and without having done anything to prevent the escape of gas, or to locate the exact point of leakage.

The foreman in charge of the ditch digging crew was the gas inspector for the Town of Silver City and was present both before and after the snagging and bending of the gas pipe line by the drag hoe. At least two or three of the defendant's agents and employees, one of whom was the gas inspector, who were present at the scene of the snagging and jerking of the gas pipe line had had experience with natural gas and knew of its dangerous properties. On former occasions, when an occurrence like this took place, the employees engaged on the job had made it a practice to call the gas company so that an immediate investigation could be made to determine if there were leaks and with a view of repairing any found. The highly dangerous, elusive and explosive nature of natural gas and the great care required in order to manage and control it safely were facts well known to the defendant, its agents and employees. Notwithstanding this, however, after the snagging of the gas pipe line and with knowledge that gas was escaping as shown by the flash fire mentioned, the defendant failed to notify the gas company or take any other precautions to stop the escape of gas or determine to location of the leak.

Subsequent investigation disclosed that a break and occurred in the gas line beneath the foundation of the center cabin of the tier of cabins through which gas was escaping and accumulating in large quantities in the two north cabins of the teir, all without the knowledge of plaintiffs. About 12:30 o'clock, shortly after noon on March 15, 1949, the accumulated gas became ignited without the fault of plaintiff resulting in a violent explosion and fire in the tier of cabins mentioned, almost completely demolishing the two north cabins and resulting in extensive damage to the north wall of the south cabin.

The trial court awarded damages in the total sum of $7640 made up of items as follows:

Reasonable cost of replacing or restoring the two north cabins $4500.00

Reasonable cost of restoring the north wall of the south cabin 1000.00

Reasonable value of personal property destroyed, and not covered by insurance consisting of one stove at $25.00, chest of drawers at $15.00 and miscellaneous articles at $55.79 95.79

Cost of rerouting and repairing plaintiffs' gas pipeline necessitated by explosion 444.21

Loss of rental income otherwise accruing between March 15, 1949 and July 15, 1950, from cabins destroyed and resulting approximately from the explosion 1600.00

The tier of cabins destroyed or damaged was erected on Canal Street due to a misapprehension on plaintiffs' part as to where their property lines ended. This misapprehension seemingly was shared by defendant Town to the extent, at least, that it accepted certain taxes from plaintiffs on the cabins so located. At some time prior to the date of the explosion the defendant acquired knowledge that plaintiffs' cabins were wholly on Canal Street, its property. Its act in striking and snagging the gas pipe line as aforesaid violated a duty of proper care owed by the defendant to the plaintiffs and the damage suffered by them resulted from a violation of this duty by the defendant.

The foregoing constitutes a narration of pertinent facts found by the trial court. It concluded from them that defendant's failure to take preventive action definitely to locate the leak or break in the gas line constituted willful and wanton negligence, more especially in view of the grave consequences likely to follow such failure. The court concluded further that all of the damages suffered by plaintiffs resulted directly and proximately from defendant's negligent acts for which they were entitled to recover. Judgment based on the foregoing findings and conclusions having been entered for the amount above stated, the matter comes before us by appeal for its revision and correction because of errors claimed to have been committed below and assigned here as grounds for reversal.

The first and basic decision to make in a consideration of this appeal is to determine the question of liability vel non on the part of the defendant, Town of Silver City. If there be no liability at all that ends the matter, the judgment is erroneous and it should be reversed. If there is liability then additional questions reserved below for review here emerge and must be resolved. There can be no doubt but that counsel for the defendant have reserved for review the primary question of liability. Accordingly, we shall proceed first to resolve it. In doing so we must cut away a tangle of legal undergrowth with which the basic question has been surrounded in argument before reaching it for solution.

To illustrate and as pointed out above, it is an admitted fact in this case and the trial court found that plaintiffs' cabins, for loss of, or damage to, which this action was filed, were constructed wholly on land belonging to defendant, namely, on Canal Street. Thus the plaintiffs were trespassers or licensees, at best. As such, the Town was liable to them only for wanton or willful negligence. Chavez v. Torlina, 15 N.M. 53, 99 P. 690. See, also, Jones v. George F. Getty Oil Co., 10 Cir., 92 F.2d 255.

Nevertheless, we are asked to determine if there be error in the trial court's ruling below that the judgment in the ...