Stephens v. Dulaney

• Citation: 78 N.M. 53,1967 NMSC 125,428 P.2d 27
• Decision Date: 29 May 1967
• Docket Number: No. 8284,8284
• Parties: Gladys STEPHENS, Plaintiff-Appellee, v. J. L. DULANEY, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 27

428 P.2d 27

78 N.M. 53

Gladys STEPHENS, Plaintiff-Appellee, v. J. L. DULANEY, Defendant-Appellant.

No. 8284.

Supreme Court of New Mexico.

May 29, 1967.

Neal & Matkins, Charles I. Wellborn, Carlsbad, for appellant

William J. Heck, Hobbs, Joseph O. Walton, Lovington, for appellee.

OPINION

OMAN, Judge, Court of Appeals.

This is the second time this case has been before this court on appeal. On the first trial the jury returned a verdict for the defendant and the plaintiff appealed. The case was reversed and remanded for a new trial solely on the basis of error on the part of the trial court in giving to the jury an instruction of assumption of risk. Stephens v. Dulaney, 76 N.M. 181, 413 P.2d 217 (1966).

On the second trial the jury returned a verdict for the plaintiff, and now the defendant has appealed. He asserts error on the part of the trial court in refusing to instruct the jury on contributory negligence and on the matter of the application of the New Mexico Guest Statute.

The plaintiff's complaint was predicated upon alleged negligence of the defendant. She did not plead that she was a guest passenger, or even that she was a passenger in the vehicle. The defendant pleaded contributory negligence as an affirmative defense, but he did not plead the guest statute, or the guest-host relationship at the time of the explosion out of which the plaintiff's claim arises. He admits that perhaps he should have asserted as an affirmative defense that plaintiff was a guest passenger, but states the case was tried on this theory.

The only evidence, which in any way may be said to bear upon the relationship between the parties in connection with their use of the vehicle, is that defendant was the owner of the pickup truck and they had been traveling together in it on a deer hunting trip.

Our disposition of this appeal does not require us to determine whether or not, under the circumstances, defendant was entitled to an instruction on the guest statute.

As above stated, this cause was reversed on the first appeal because of error in instructing on assumption of risk. Conduct under certain facts and circumstances may amount to an assumption of the risk as well as contributory negligence. Padilla v. Winsor, 67 N.M. 267, 354 P.2d 740 (1960); Dempsey v. Alamo Hotels, Inc., 76 N.M. 712, 418 P.2d 58 (1966); Restatement (Second) of Torts § 496A, commented at 562--64 (1965). However, assumption of risk and contributory negligence are not synonymous, but are separate and distinct defenses. Padilla v. Winsor, supra; Dempsey v Alamo Hotels, Inc., supra; McMurdo v. Southern Union Gas Co., 56 N.M. 672, 248 P.2d 668 (1952); Kleppe v. Prawl, 181 Kan. 590, 313 P.2d 227, 63 A.L.R.2d 175 (1957); Restatement (Second) of Torts § 496A, supra; Annot., 82 A.L.R.2d 1218, 1228--57 (1962); U.J.I. No. 13.10, Directions for Use, Committee Comment at 184--85 (N.M.1966).

Here the defendant pleaded the affirmative defense of contributory negligence. A party is entitled to have the jury instructed upon all correct legal theories of his case which are pleaded and supported by evidence, and a failure by the trial court to so instruct constitutes reversible error. Clay v. Texas-Arizona Motor Freight, Inc., 49 N.M. 157, 159 P.2d 317 (1945); Stewart v. Oberholtzer, 57 N.M. 253, 258 P.2d 369 (1953); Tipton v. Clower, 67 N.M. 388, 356 P.2d 46 (1960); Reed v. Styron, 69 N.M. 262, 365 P.2d 912 (1961); Mills v. Southwest Builders, Inc., 70 N.M. 407, 374 P.2d 289 (1962).

The defendant tendered instructions on contributory negligence and there is no contention that these requests failed to correctly state the law, except as hereinafter noted. The position of plaintiff is that there was not sufficient evidence to warrant the submission of instructions on contributory negligence,

'* * * by reason of the law in New Mexico enunciated in McMullen v. Ursuline Order of Sisters, 56 N.M. 570, 246 P.2d 1052, and Clark v. Cassetty, 71 N.M. 89, 376 P.2d 37.'

She then states that this court in both of these cases,

'* * * plainly stated that an essential element of the doctrine of contributory negligence is the voluntary exposure of the party involved to a known danger.'

The language upon which she relies first appeared in the McMullen case as just one sentence of a rather lengthy quote from 38 Am.Jur., Negligence, § 188. This sentence reads: '* * * A voluntary exposure to a known danger is an essential element of contributory negligence. * * *'

This particular language incorrectly states the law of contributory negligence, in that a voluntary exposure to a known danger is not an essential element of contributory negligence, but, as above stated, such conduct may constitute contributory negligence as well as an assumption of risk. In the two above-cited cases in which this language appears there was involved in the one case a dangerous instrumentality and in the other a dangerous condition. In and of themselves, and without some further notice or knowledge which would have suggested to a reasonably prudent person a probable defect or unsafe propensity existing therein, the instrumentality and the condition were not such as would create a sense of danger in the mind of an ordinary prudent person.

A reference to the text where the particular sentence above-quoted appears, and upon which plaintiff has seized, shows, that the authority for this statement is section 182 of the same text. By turning back to section 182, we find it entitled, 'Exposure to Peril.' The first four sentences in this section read:

'A person who, by his own act, subjects himself unnecessarily to danger violates the duty imposed upon all men to use ordinary care for their own safety and is guilty of contributory negligence. The law imposes upon a person, sui juris, the obligation to use ordinary care for his own protection, the degree of which is commensurate with the dangers to be avoided; and one who voluntarily and unnecessarily assumes a position of danger, the hazards of which he understands and appreciates, cannot recover for an injury from a risk incident to the position. Exposure to known danger, however, is not always contributory negligence. It constitutes contributory negligence, only where it is a voluntary and unnecessary exposure to a dangerous instrumentality or condition, the peril of which is appreciated by the plaintiff. * * *' The authority for this last quoted statement, that to constitute contributory negligence it must be a voluntary and unnecessary exposure to a dangerous instrumentality or condition, the peril of which is appreciated by plaintiff, consists of a reference to section 184, which is the first of several sections, including section 188, under the subheading, 'Knowledge and Appreciation of Peril.' The substance of section 184, insofar as here material, appears in the following quoted portion thereof:

'Fault on the part of the defendant is to be found in action or nonaction accompanied by knowledge, actual or implied, of the probable results of his conduct; and fault on the part of the plaintiff is to be determined by the same test. An essential element of contributory negligence is that the person to be charged therewith knew, or by the exercise of ordinary care should have known, of the circumstance or condition out of which the danger arose. * * * As it generally is expressed, a plaintiff will not be held to have been guilty of contributory negligence if it appears that he had no knowledge or means of knowledge of the danger, and conversely, he will be deemed to have been guilty if it is shown that he knew or reasonably should have known of the peril and might have avoided it by the exercise of ordinary care. This element of knowledge, it should be noted, is the foundation of the maxim, 'volenti non fit injuria,' to which reference is made in asserting the doctrine of assumed risk, hereinbefore discussed. * * *'

Nothing contained in section 184 supports the particular language here relied upon by plaintiff. The writer of the text, in some way by references to other sections of the text, came up with what is an essential element of assumption of risk, but which is not, contrary to what is stated, an essential element of contributory negligence.

The difference between assumption of risk and contributory negligence is noted above, and authorities are cited, pointing out the distinctions between them. See in addition to those authorities, Reed v. Styron, supra; Barakos v. Sponduris, 64 N.M. 125, 325 P.2d 712 (1958); Bogart v. Hester, 66 N.M. 311, 347 P.2d 327 (1959).

Contributory negligence is defined in the second Restatement of Torts, sections 463--66, at pages 507--11, as follows:

' § 463. Contributory Negligence Defined

'Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff's harm.

' § 464. Standard of Conduct Defined

'(1) Unless the actor is a child or an insane person, the standard of conduct to which he must conform for his own protection is that of a reasonable man under like circumstances.

' § 465. Causal Relation Between Harm and Plaintiff's Negligence

'(1) The plaintiff's negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it.

' § 466. Types of Contributory Negligence

'The plaintiff's contributory negligence may be either

'(a) an intentional and unreasonable exposure of himself to danger created by the defendant's negligence, or which danger the plaintiff knows or has reason to know, or

'(b) conduct which, in respects other than those stated in Clause (a), falls short of the standard to which the reasonable man should conform in order to protect himself from harm.'

The New Mexico Uniform...