Srader v. Pecos Const. Co.

• Decision Date: 17 January 1963
• Docket Number: No. 6903,6903
• Citation: 378 P.2d 364,71 N.M. 320,1963 NMSC 10
• Parties: Eva SRADER, Plaintiff-Appellant, v. PECOS CONSTRUCTION COMPANY, Inc., a corporation, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 364

378 P.2d 364

71 N.M. 320

Eva SRADER, Plaintiff-Appellant, v. PECOS CONSTRUCTION COMPANY, Inc., a corporation Defendant-Appellee.

No. 6903.

Supreme Court of New Mexico.

Jan. 17, 1963.

Webb & Beavers, Farmington, Johnston Jeffries, Aztec, for appellant.

Brown, Wood & Roberts, Farmington, for appellee.

CHAVEZ, Justice.

This is an appeal from a summary judgment in favor of appellee.

Appellant filed suit against appellee, asking damages for injuries received by her while she was helping her husband shingle a house which was being constructed by appellee in Farmington, New Mexico. Appellant's complaint alleged that appellee entered into a contract with John E. Srader, Jr., her husband, to shingle said house; that she was lawfully upon the roof of said house assisting her husband in carrying out his contract; that appellee had negligently failed to cover a large floor opening in said roof with substantial floor covering, or failed to install substantial railings around said opening, contrary to a Farmington ordinance in effect at the time of the accident; that said ordinance was passed and made effective for the purpose of protecting persons, such as appellant, from injury while upon the roof of a building under construction; and that as a direct result of appellee's negligence in failing to comply with the terms of the ordinance, appellant fell through said opening suffering serious injuries, for which she asked judgment in the sum of $25,000. Certain portions of the ordinance were set out in the complaint.

Appellee answered denying the allegations of the complaint and alleged, as separate defenses, that appellant was a trespasser, bare licensee, or volunteer. In addition, the defenses of contributory negligence and assumption of risk were raised, as well as the defense that appellee owed no duty to appellant. The depositions of appellant and her husband were taken. Appellant filed her request for admissions of fact, to which appellee answered; whereupon, appellee moved for summary judgment which the trial court granted.

John E. Srader, Jr., appellant's husband, was a carpenter in appellee's employ. He also did extra shingling work for appellee in his off-time, usually in the evenings and on Saturdays and Sundays. Srader was paid $2.75 per square on a flat rate per job, which averaged about $65 to $70 per house. He was not paid by the hour. It usually took him twelve hours to shingle a house. Appellee supplied the materials and Srader furnished his own tools, with the exception of a ladder furnished by appellee. Srader worked without supervision or control, except as to final results. After Srader finished his work, appellee inspected it and, if satisfactory, Srader got his check. Srader could hire additional help, if he desired, but had to pay for same from his own funds. Srader usually worked alone and had previously shingled six houses for appellee.

On the day of the accident, a Sunday afternoon in November, appellant was upon the roof helping her husband, having volunteered her help because he had frozen some of his fingers in a recent sleet storm, and because they wanted to get through before the weather got bad. The top of the roof was ten feet above the ground. Some three or four days previous to the accident, Srader had laid the 'dry sheet,' a kind of felt material applied to a roof prior to the laying of the shingles, and this also included covering the roof opening left for the fireplace. Appellant and her husband arrived at the house about 1:00 p. m. and the accident occurred at 1:30 p. m. Srader was putting on the starter row when suddenly he heard a 'kind of crash sounding' and saw appellant's hands disappearing as she fell through the dry sheet and down the opening it covered. Appellant was about fifteen feet from Srader when she went through the opening. Prior to the accident, appellant had been driving nails behind Srader on the west side of the house and had crossed over to open some bundless of shingless and scatter them along the roof. The bundles were on the west side and had been placed there by appellee. The fireplace opening was on the west side, about fifteen feet from where Srader was working. There were no guardrails or other indication to warn appellant of the existence of the opening, except for some boards which were lying across the roof. Since these boards were similar in appearance to those she had previously handed up to Srader to use as a straightedge, she thought they were simply extra boards lying there. Appellant was relatively inexperienced, having helped roof her own house and having worked earlier on the same day on another house being built by appellee, at which time appellee's agents saw her working with her husband and jokingly congratulated him for having such a good helper.

In the consideration of a motion for summary judgment, the function of the trial court is to determine whether there is a genuine issue of material fact for trial. On appellee's motion for summary judgment, appellant must be given the benefit of all reasonable inferences to be drawn from the pleadings, affidavits and depositions, and all doubts as to the existence of such an issue must be resolved against the moving party. Agnew v. Libby, 53 N.M. 56, 201 P.2d 775; McLain v. Haley, 53 N.M. 327, 207 P.2d 1013; Morris v. Miller & Smith Mfg. Co., 69 N.M. 238, 365 P.2d 664. A summary judgment is not proper where there are material issues of fact involved. Morris v. Miller & Smith Mfg. Co., supra; Sooner Pipe & Supply Corp. v. Doerrie, 69 N.M. 78, 364 P.2d 138. In Ginn v. MacAluso, 62 N.M. 375, 301 P.2d 1034, this court said:

'* * * In resolving this question we must view the testimony in the most favorable aspect it will bear in support of the plaintiff's claim of right to go to the jury. One contesting the right bears a heavy burden. Michelson v. House, 54 N.M. 197, 218 P.2d 861, 863. * * *

"* * * Litigants are entitled to the right of trial where there is the slightest doubt as to the facts. Ramsouer v. Midland Valley Railroad Co., D.C., 44 F.Supp. 523; Whitaker v. Coleman, 5 Cir., 115 F.2d 305."

6 Moore's Federal Practice, Sec. 56.08, p. 2050, states the rule as follows:

'A defending party who moves for summary judgment has the burden of clearly establishing his right thereto as a matter of law.'

Appellant sets forth a portion of the Farmington Building Ordinance, reading as follows:

'SECTION 1207. FLOOR OPENINGS.

'All floor openings, unless guarded by permanent enclosures or full-height temporary barriers, shall be covered with substantial temporary flooring, or guarded on all sides by substantial railings not less than 4 feet high set at least 2 feet from the edges of the openings, and by toe boards not less than 6 inches high set along the edges of the openings, except for such parts of the openings as are necessarily open for traffic purposes.'

Appellee admitted the existence of the ordinance at the time of the accident; that there was an opening in said roof prior to the time Srader began his work thereon; that prior to the time Srader began his work thereon, neither appellee, its agents or employees, had covered said opening or installed a railing around said opening; that at no time did appellee, its agents or employees, install a railing around any such opening; that after Strader began work on said roof, and before appellant entered upon said roof, Srader covered said opening with what is known as a 'dry sheet'; that the only covering of said opening was made by Srader; and that Srader's status at the time he covered said opening is conclusion of law. Appellee, in response to appellant's request for admissions, denied:

'6. That said city ordinance was passed and made effective for the purpose of protecting persons, such as plaintiff, from injury while lawfully upon the roof of a building under construction.

'7. That defendant, as the contractor for the construction of said above mentioned house, was responsible for complying with the provisions of the above mentioned city ordinance.'

In addition to the foregoing denials, appellee, in its brief and answer, denied the applicability of the referenced Farmington ordinance, being Chapter 1.1 of the Farmington Municipal Code, stating that 'the ordinance on floor openings does not pertain to the roof.' Since a violation of a statute or ordinance has been held to be negligence per se, McLain v. Haley, supra, in order for the ordinance to be relevant to the question of actionable negligence, the act or omission complained of must have involved an actual violation of the ordinance. 65 C.J.S. Negligence Sec. 19, p. 422; Hill v. Eaton & Smith, 65 Cal.App.2d 11, 149 P.2d 762.

On its face, this section of the ordinance would seem to refer only to openings in floors and be inapplicable to the instant case. The trial court did not indicate the basis upon which he granted summary judgment; therefore, we can only indulge in forbidden speculation as to his actual reasons for so ruling. It is clear that the quoted portion of the ordinance was the only part set out in the pleadings. Appellant argues that 'roof' and 'floor' have equivalent meanings in the building trades, and furthermore, that this is a question of fact which should be decided by the fact trier. From the record, we are unable to ascertain whether this argument was made to the trial court. Normally, while the moving party has the burden of showing that there exists no genuine issue of material fact, when a prima facie showing to this effect has been made, the opposing party cannot remain silent or defeat the motion by a bare contention that an issue of fact exists. Southern Union Gas Co. v. Brinder Rust Proofing Co., 65 N.M. 32, 331 P.2d 531.

Rule 44(d), Rules of Civil Procedure, (Sec. 21-1-1(44)(d), N.M.S.A., 1953 Comp.), provides that the courts of this state shall take judicial notice of the following facts:

'(1) The true significance of all English words...