Valdez v. Azar Bros.

• Decision Date: 03 February 1928
• Docket Number: No. 2870.,2870.
• Parties: VALDEZv.AZAR BROS.
• Court: New Mexico Supreme Court

33 N.M. 230

264 P. 962

VALDEZ

v.AZAR BROS.

No. 2870.

Supreme Court of New Mexico.

Feb. 3, 1928.

Syllabus by the Court.

If, upon the same facts, one might be innocent under a provision of an earlier municipal ordinance, but is necessarily guilty under a provision of a later, the two are repugnant, and the earlier is repealed by implication.

An allegation of leaving horses hitched to a wagon untied and unattended in a city street states a prima facie case of negligence, but not negligence as matter of law.

An intermingling in one count of several causes of action should be raised by motion to make more definite and certain.

Appeal from District Court, Colfax County; Leib, Judge.

Action by Ignacio Valdez, administrator of Josefina Valdez, deceased, against Azar Bros., a copartnership composed of Richard H. Azar and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with direction.

Intermingling in one count several causes of action should be raised by motion to make more definite and certain. Code 1915, §§ 4104, 4105.

Crampton & Darden, of Raton, for appellants.

J. Leahy, of Raton, for appellee.

WATSON, J.

[1] This appeal is from a judgment of $1,250, recovered by the appellee, as administrator, for negligence of appellants, resulting in the death of Josefina Valdez, appellee's intestate.

By section 6 of the second amended complaint, it was alleged:

“That said defendants on said 14th day of June, 1921, had said horses hitched to said wagon for the purpose of delivering merchandise as aforesaid, and while said horses were so hitched to said wagon, the said defendants wrongfully, willfully, carelessly, and negligently left the said horses untied while so hitched to said wagon, upon a certain street and public highway in the said city of Raton, to wit, on East Cook avenue, and within the city limits of the said city of Raton, which is a municipal corporation, and said defendants at said time and place left said horses on said last-named street, untied and without making said horses fast with a good sufficient halter or hitching apparatus, and without any person having hold of them in any manner so as to prevent their running away, and then and there left said horses wholly untied and unattended by any person, contrary to the provisions of the ordinances of said city of Raton, and particularly contrary to the provisions of section 9 of Ordinance 12 of said city, and which was then and there in effect, a copy of said section 9 being hereto attached, marked ‘Exhibit 1,’ and made a part of this complaint; and that by reason of said willfulness, wrongfulness, carelessness, and negligence of the said defendants as aforesaid and in the manner aforesaid the said horses then and there ran away and ran over and upon and trampled upon the said plaintiff's intestate as she was crossing from the north side of said East Rio Grande avenue to the south side thereof, and at a point where she had the legal right to cross and which was the regular and legal place for her so to cross, and said horses then and there and thereby knocked plaintiff's intestate down and dragged her upon the ground and pulled said wagon over, upon, and across her body, and without contributory negligence or her part, by means of which and whereby plaintiff's intestate was then and there fatally injured, crushed, and bruised, in and upon her body, chest, abdomen, and back and vital organs; and plaintiff's intestate thence continually languished until the 16th day of June, 1921, when she died from said injuries, crushing, and bruising aforesaid.”

The cause was tried without a jury, and the court made findings of fact and conclusions of law, among which were the following:

“(3) The court further finds that on the 14th day of June, 1921, the said defendants were the owners of a certain team and wagon, used by them in delivering goods in the city of Raton, a municipal corporation, situate in Colfax county and state of New Mexico, and that on said day the said defendants had said horses hitched to said wagon, in said city of Raton, and that said defendants wrongfully, willfully, carelessly, and negligently left the said horses, unattended by any person, upon a public street of said city of Raton, viz. East Cook avenue, and without tying or making said horses fast with a good and sufficient halter or hitching apparatus, whereby the said horses on said day ran away, while so hitched to said wagon, and that said horses ran over and upon and trampled upon the said Josefina Valdez, and dragged her upon the ground, and dragged the said wagon over and upon her while she was crossing over and upon a public crossing of said city of Raton, to wit, East Rio Grande avenue, inside the limits of said city; and that said horse thereby grievously crushed, bruised, and injured the said Josefina Valdez, and from which crushing, bruising, and injuries she thereafter died on the 16th day of June, 1921, and that said wrongful, willful, and negligent acts of defendants were the proximate and efficient cause of the death of plaintiff's intestate.

(4) The court further finds that all of the material allegations of paragraph 6 of plaintiff's second amended complaint, have been substantially proven, and that said defendants, in leaving the said horses in the manner last aforesaid, did so in violation of Ordinance 12 of said city, and particularly section 9 of said ordinance, and that said section of said ordinance was at the time in force and effect.”

Section 9 of Ordinance 12, pleaded in the second amended complaint, is as follows:

“Any person who shall race horses, or who shall ride or drive any horse, team or other animal, through and upon the streets, within the limits of said city, at a speed or gait so rapid as to endanger persons, and any person who shall leave any horse or horses, or animal attached to any vehicle or conveyance in any street, alley or public place within said city without making such horse fast, with a good and sufficient halter, or other hitching apparatus, to prevent their running away; and any person who shall ride or drive any team, horse or other animal upon or along any of the side walks or footways of the city, shall, upon conviction thereof, be punished by imprisonment in the county jail or city prison, for a period not exceeding thirty days, or by both such fine and imprisonment, in the discretion of the court.”

This section 9 was received in evidence over the objection of appellants that it had been repealed by Ordinance 231, entitled “An ordinance regulating the traffic and travel on the public streets of the city of Raton.” The latter is a comprehensive ordinance containing twenty-seven sections covering, generally, the subject-matter of the title. Section 25 thereof provides as follows:

“No horse or draft animals shall be allowed to be hitched to any tree or fire hydrant or light, telephone or telegraph pole; such horses or animals unless securely hitched shall carry a drop weight of not less than thirty pounds attached to the bridle bit in the mouth of such animal, unless such horse or animal is in the immediate and actual charge and control of a driver or attendant.”

In the original opinion we overruled appellant's contention that section 9 of Ordinance 12 was repealed by implication by the adoption of Ordinance 231. We are now convinced that we fell into error in so holding, at least as the question affects this case. The opinion will therefore be withdrawn.

Whether Ordinance 231 “is so broad in its terms and so clear and explicit in its words as to show it was intended to cover the whole subject, and therefore, to displace the prior (ordinance) statute” (State ex rel. Board of County Commissioners v. Romero, 19 N. M. 1, 140 P. 1069), or is so comprehensive of the subject of “traffic and travel on the public streets of the city of Raton,” as to evince an intent to displace all former legislation on the subject, are questions we need not consider. But one provision of section 9 of Ordinance 12 is here relied upon; namely, leaving horses “attached to any vehicle or conveyance in any street * * * within said city without making such horse(s) fast, with a good and sufficient halter, or other hitching apparatus, to prevent their running away. * * *” A later expression of the will of the city's legislative authority provides:

“* * * Such horses or animals unless securely hitched shall carry a drop weight of not less than thirty pounds attached to the bridle bit in the mouth of such animal, unless such horse or animal is in the immediate and actual charge and control of a driver or attendant.”

This provision is controlling. Any former legislation repugnant to it must give way. Territory v. Matson, 16 N. M. 135, 113 P. 816; Earnest v. Sargent, 20 N. M. 427, 150 P. 1018.

Can the courts enforce both of these provisions at the same time? Both relate to the hitching of horses. Both constitute offenses against municipal authority. Both, under the rules of law, define negligence per se. The...