Strickland v. Roosevelt County Rural Elec. Co-op., No. 3865

Docket NºNo. 3865
Citation612 P.2d 689, 94 N.M. 459, 1980 NMCA 12
Case DateJanuary 17, 1980
CourtCourt of Appeals of New Mexico

Page 689

612 P.2d 689
94 N.M. 459
Rhoda Ann STRICKLAND, as personal representative of the
Estate of Joseph Kay Strickland, Deceased,
Carter, Defendants-Appellees.
No. 3865.
Court of Appeals of New Mexico.
Jan. 17, 1980.

[94 N.M. 461]

Page 691

Mark J. Klecan, Joseph Rocca, Eugene E. Klecan, Wendy M. Bickel, Klecan & Roach, P.A., Albuquerque, for plaintiff-appellant.

Dan B. Buzzard, Clovis, for defendant-appellee, Roosevelt County Rural Elec.

Lynn Pickard, Pickard & Singleton, Santa Fe, for defendant-appellee, Cyril E. Carter.


SUTIN, Judge.

This action was brought pursuant to the New Mexico Wrongful Death Act. Decedent was electrocuted while unloading soil conditioner delivered in a truck to a location specified by defendant Carter on Carter's farm. Decedent's truck came in close proximity to power lines installed and maintained by defendant Electric Cooperative. At the conclusion of plaintiff's case, the trial court directed a verdict in favor of both defendants solely on the ground that decedent was guilty of contributory negligence[94 N.M. 462]

Page 692

as a matter of law. Plaintiff appeals from the judgment entered on the directed verdict. We reverse.

A. The facts are undisputed.

Carter was the only eyewitness to decedent's electrocution. He was not called as a witness to testify in person. His testimony was presented by way of a written statement by defendant's agent and deposition taken by plaintiff. Plaintiff read a portion of the deposition to the jury that related Carter and Electric Coop to her claims. Defendant, who cross-examined Carter, read portions that related to decedent's conduct.

On September 8, 1976, for the first time, decedent delivered a load of soil conditioner by tractor-trailer to Carter's farm house near Portales. He arrived at 6:15 p. m. Sunset occurred at 7:00 or 7:10 p. m. and the electrocution occurred before 7:00 p. m.

Upon arrival, Carter entered decedent's truck to show decedent where the soil conditioner should be dumped. Carter directed decedent to drive along a dirt road some 600 yards south of Carter's house. During this trip, Carter told decedent to be careful and watch the electric lines. The electric poles and wires positioned along the west side of the road ran parallel with the road and were in clear sight, plain, open and obvious. These wires were owned and maintained by Electric Coop and were transmission or feeder lines which served Carter's farm, numerous residences and a few businesses. The wires were not insulated and carried a voltage of 7200 volts.

After arrival at the designated area, decedent complained about workers who had been slow to load his truck and he was anxious to get home. Carter directed decedent to back the truck underneath the power line onto a field on the west side of the road. Carter instructed decedent to dump the soil conditioner on the west side of the road because it was centrally located for distribution over various fields on his farm.

Defendant backed the truck some 37 feet west of the road and dumped a portion of the load. With the trailer in an upright position, decedent then drove his truck forward eastwardly to empty the load on his trailer. Carter, who had emerged from the truck, thought decedent might run through the power lines and had decedent stop the truck. No part of the truck was in direct contact with the power lines. However, expert testimony established that an electrical current could arc or jump from the uninsulated wires about 1/10 of an inch to the metal portion of the trailer without actual contact between the two surfaces. Having stopped, decedent emerged from the cab. Carter pointed again and said "Watch those lines," but decedent payed no attention. He just went over to get the crank. He hit the lever on the left side of the truck to let the bed down some, then put his right hand on the outside lever and fell forward. To stop the bed from coming down, Carter immediately moved the same lever decedent had just touched and felt nothing at all, so he thought decedent had died of a heart attack. Carter did not observe the position of the trailer with the power lines and did not think there was any danger. Carter did not know that decedent had been electrocuted until he was notified at 8:00 p. m. that evening.

The State Medical Examiner testified that no burns were present on either of decedent's hands. Decedent had not been electrocuted by touching the lever with his hand as Carter testified. The entry of the electrical current was found on decedent's left arm and back where the burns were located.

B. Status of case on appeal.

When plaintiff rested her case, defendants, among other motions, moved for a directed verdict that plaintiff's claims be barred by reason of decedent's contributory negligence as a matter of law. The motions were based upon the failure of decedent to obey the warnings given by Carter. After extensive argument, the trial court granted defendants' motion for a directed verdict "on the issue of contributory negligence."

By moving for a directed verdict on decedent's contributory negligence, defendants [94 N.M. 463]

Page 693

admitted their negligence for purposes of the motion. McKeough v. Ryan, 79 N.M. 520, 445 P.2d 585 (1968). Defendants cannot now challenge the sufficiency of plaintiff's case.

The only issue on this appeal is:

Did the trial court properly direct a verdict based upon the fact that decedent was guilty of contributory negligence as a matter of law?

Contributory negligence is an affirmative defense. The burden was on defendants to establish this defense as a matter of law. To hold decedent guilty of contributory negligence as a matter of law, the trial court had to accept Carter's testimony as true and declare that decedent foresaw an unreasonable risk of injury to himself after warnings had been given and that reasonable minds would agree that a reasonably prudent person in the exercise of ordinary care would not have acted as decedent did. Anderson v. Welsh, 86 N.M. 767, 527 P.2d 1079 (Ct.App.1974); U.J.I. 13.1 and 12.1.

C. Purpose of Rule 50(a) entitled Motion for a Directed Verdict.

Rule 50(a) of the Rules of Civil Procedure provides a party with the right to file a motion for a directed verdict in which the party states the specific grounds therefor. No provision is made for disposition of the motion. Martinez v. Bullock, 535 P.2d 1200, 1203 (Alaska, 1975) says:

The purpose of a motion for a directed verdict under Civil Rule 50(a) is to allow a judge to resolve a factual issue where, viewing the evidence in the light most favorable to the nonmoving party, fair-minded jurors could not reach different conclusions on the issue. . . .

In other words, the purpose of the Rule is to allow the judge, not the jury, to resolve the factual issue in the instant case by concluding that decedent was guilty of contributory negligence as a matter of law.

D. A directed verdict is not favored.

There are no rigidly definite directed verdict standards. The appropriate exercise of judicial control depends heavily on the nature of the factual uncertainties involved in all the evidence. Therefore, directed verdicts are not favored and should be granted only when the jury could not reasonably and legally reach any other conclusion. Console v. Nickou, 156 Conn. 268, 240 A.2d 895 (1968); LaVelle v. Kenneally, 165 Mont. 418, 529 P.2d 788 (1974); Serratoni v. Chesapeake and Ohio Railway Company, 333 F.2d 621 (6th Cir. 1964). " '. . . Trial by jury is our established constitutional safeguard against assumption of unwarranted judicial authority and should be honored by steadfast observance.' " Serratoni, supra (Id. 626). Such motions should be sparingly and cautiously granted. Fisher v. Sears, Roebuck & Company, 207 Kan. 493, 485 P.2d 1309 (1971). In a tort action the trial court should always be extremely chary in directing a verdict. Lee v. Southland Corporation, 253 So.2d 268 (Fla.App.1971). He deals with one of the most tricky situations in the administration of the law, Garcia v. San Gabriel Ready Mixt., 155 Cal.App.2d 568, 318 P.2d 145 (1957), and, the law very zealously protects one against whom a motion for a directed verdict is addressed. Burke v. Burke, 135 Ind.App. 235, 191 N.E.2d 530 (1963).

The purpose of emphasizing the appellate court's attitude toward the directed verdict is to encourage a district judge to be positive in his approach to a decision on the motion. He must recognize that it is burdensome upon a plaintiff to retry the case when the same result can be reached by judgment N.O.V. If there is doubt in the court's mind that all reasonable men would draw the same conclusion from the evidence, the question must be submitted to the jury. "When a motion for instructed verdict counting on contributory negligence is presented, the trial judge becomes a sort of assayer of evidence and his cupel admits of motion-grant only when it discloses that all reasonable men would conclude with unanimity that the plaintiff was guilty of 'no care at all' ". (Emphasis by Court.) Normand v. Thomas Theatre Corporation, 349 Mich. 50, 84 N.W.2d 451, 454 (1957).

[94 N.M. 464]

Page 694

E. On the issue of contributory negligence, a verdict will not be directed where the only person who could have contradicted the witness is dead.

Contributory negligence is almost always a question of fact to be determined by the jury, and is not a question of law, especially so where plaintiff has a reasonable election as to whether he should expose himself to peril. Proctor v. Waxler, 84 N.M. 361, 503 P.2d 644 (1972). While contributory negligence cannot rest on speculation or conjecture, it has been repeatedly stated that only in rare instances is the trial court warranted in withdrawing contributory negligence from the jury. Pancoast v. McLean, 6 Wash.App. 592, 494 P.2d 1374 (1972); Halley v....

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    ...the person of the other directly or indirectly results"); see also Strickland v. Roosevelt Cnty. Rural Elec. Coop., 1980–NMCA–012, ¶ 14, 94 N.M. 459, 612 P.2d 689 ("[D]irected verdicts are not favored and should be granted only when the jury could not reasonably and legally reach any other ......
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    ...witness furnishes a proper ground for hesitating to accept his statements [.]" Strickland v. Roosevelt County Rural Electric Cooperative, 94 N.M. 459, 465, 612 P.2d 689, 695 (Ct.App.1980) (quoting and emphasizing Hull v. Littauer, 162 N.Y. 569, 57 N.E. 102 (1900)). The evidence bearing on t......
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