Trujillo v. Clark

• Decision Date: 17 January 1963
• Docket Number: No. 6942,6942
• Citation: 377 P.2d 958,71 N.M. 288,1963 NMSC 9
• Parties: Miguel TRUJILLO, Plaintiff-Appellant, v. Ernest CLARK, d/b/a Clark & Son Auto Wrecking and Salvage, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 958

377 P.2d 958

71 N.M. 288

Miguel TRUJILLO, Plaintiff-Appellant, v. Ernest CLARK, d/b/a Clark & Son Auto Wrecking and Salvage Defendant-Appellee.

No. 6942.

Supreme Court of New Mexico.

Jan. 17, 1963.

M. W. Hamilton, Santa Fe, for appellant.

Catron & Catron, Santa Fe, for appellee.

BRAND, District Judge.

The appellant Trujillo, plaintiff below, on the morning of October 13, 1958, went to defendant's automobile wrecking yard at Santa Fe looking for used parts for his car. He was 60 years of age, had had no schooling, and stated his occupation as a skilled laborer and carpenter's helper. In that portion of the yard where old and wrecked cars were stored, he found a front seat cushion which he wanted, and returned that afternoon to obtain it after ascertaining its price from the defendant. It had to be detached from a Ford car near which was leaning a Chevrolet, and while he was going between these cars, the Chevrolet in some unexplained manner fell over and against him causing the injuries complained of. He had gone between these two cars that morning without incident and testified that he apprehended no danger in doing so. He could have gotten the cushion without going between the cars, but stated he retraced his path because he was sure it was safe to do so--'Because there was no danger,' in his words. In this area, cars which had been stripped of usable parts were piled or stacked so as to facilitate burning, after which they were cut into pieces for scrap metal.

Suit was filed in August, 1959, alleging that plaintiff was a business invitee and sustained injuries because of the grossly negligent manner in which defendant maintained the wrecking yard, in that these automobiles had been placed in positions by defendant and his employees, which constituted a danger to anyone attempting to pass between them. The defendant answered, denying the allegations of negligence and pleading the defenses of contributory negligence and assumption of risk. The matter was tried to the court without a jury, which found for the defendant after both parties had rested, and this appeal followed. Both parties had requested findings of fact and conclusions of law and the court had, prior to final judgment, entered its findings and conclusions, those deemed material here reading as follows:

'10. Said automobiles, by reason of the positions in which they had been placed and in which they were at the time of the accident herein involved, constituted a danger to anyone attempting to pass between them, which danger was a danger which was obvious and was as open to view and observation by plaintiff as by defendant.

'11. The positions of said automobiles being in plain view and visible and as open to observation by plaintiff as by defendant, and the dangers or hazards inherent in their positions to anyone attempting to pass between them being as visible and open to observation by plaintiff as by defendant, defendant owed no duty to plaintiff to give him warning of the positions of said cars or of the danger or hazard inherent therein to anyone attempting to pass between them on the occasion of the accident, under the circumstances, regardless of whether the relationship of plaintiff to defendant was that of an invitee or was some other relationship.

'12. Plaintiff, in attempting to pass between the said two automobiles, under the circumstances that existed, assumed the risk of doing so.

'13. Plaintiff, in attempting to pass between the said two automobiles, under the circumstances that existed and disclosed by the evidence, was guilty of negligence which was the proximate cause of the accident and his injuries.

'14. Even were it assumed that defendant, in permitting the said two automobiles to be placed in the positions in which they were placed, and in permitting them thereafter to remain in said positions up to the time of the accident herein involved, was guilty of negligence, plaintiff, in attempting to pass between said two automobiles, under the circumstances disclosed, was guilty of negligence which contributed to the accident and injuries sustained by him, as a proximate cause thereof.'

Appellant sets out three points on which he relies for reversal, reading:

'Point 1. A business proprietor is under a duty to business invitees to know of dangerous conditions on his premises and to warn business invitees of dangers thereon which such proprietor knows about or should know about in the exercise of reasonable care.

'Point 2. The proprietor of a business establishment open to the general public is under a duty to maintain his premises in a reasonably safe and suitable condition and a business invitee has the right to expect the premises of such establishment will be so maintained and that the proprietor thereof will take reasonable precaution to secure the safety...