Ware v. Cattaneo

• Decision Date: 04 January 1962
• Docket Number: No. 6918,6918
• Citation: 69 N.M. 394,1962 NMSC 4,367 P.2d 705
• Parties: Helen Marjorie WARE, Administratrix of the Estate of Clinton C. Ware, deceased, Plaintiff-Appellant, v. Auro CATTANEO, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 705

367 P.2d 705

69 N.M. 394

Helen Marjorie WARE, Administratrix of the Estate of Clinton C. Ware, deceased, Plaintiff-Appellant, v. Auro CATTANEO, Defendant-Appellee.

No. 6918.

Supreme Court of New Mexico.

Jan. 4, 1962.

Smith, Kiker & Kitts, Albuquerque, for appellant.

Rodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Robert M. St. John, Albuquerque, for appellee.

NOBLE, Justice.

Action was brought of personal injuries to Clinton C. Ware resulting from his falling in alleged defective front steps of defendant's house, where Ware was looking at an apartment for rent. Defendant pled contributory negligence and assumption of risk. This appeal is from a jury verdict for defendant and the judgment entered pursuant to the verdict. The sole question presented by the appeal is whether the giving of instruction No. 22, claimed to be a charge upon issues neither raised by the pleadings nor by the evidence, requires a reversal.

Ware, accompanied by others, and at the invitation of the appellee's daughter, went to appellee's house in Gallup to look at an apartment for rent. They arrived at night, knowing that the lights in the second-floor apartment they were to inspect were not turned on. Upon approaching the front steps, they were advised by the daughter to use the north side of the steps because of a hole in the south side. Foliage protruded through the rail at the north side and the steps at that side were worn, uneven and slanting. It was dark, the only light being a street light diagonally across the intersection and a lighted window on the porch. There was a porch light which was not turned on. After examination of the apartment by candlelight from candles held by the daughter and a friend, the party returned to the porch where the candles were extinguished either by the girls or by the wind. In descending the front steps on the north side, Mr. Ware fell and received the injuries companied of. He died after suit and before the trial, of causes not connected with this injury, and his widow was substituted as plaintiff.

A total of 33 instructions were given to the jury, No. 22 being the only one complained of. That instructions was:

'22. An owner or occupant of premises is not liable as an insurer of the safety of persons whom he had invited to enter. His liability to them for injuries which they may sustain while upon his premises must be predicated upon his negligence. Moreover, the degree of care required of the owner of premises toward one invited thereon may be qualified by an express or implied agreement. Obviously the duty of the owner or occupant to an invitee depends upon the circumstances surrounding the invitation, including the character of the premises which the visitor is invited to use, the nature of the invitation, the conditions under which it is extended, and the use of the premises to be made by the invitee.'

The instruction was objected to upon the grounds that it charges the jury on questions upon which there is neither a pleading nor evidence; that it is an incorrect statement of the law in that the duty of an owner or occupant to a business invitee is that of reasonable care which may not be varied or altered by circumstances surrounding the invitation; and, that there is no proof of any express or implied agreement which would qualify the standard of care owed by the owner to the business invitee. Appellee answers with the assertion that the plea and evidence of assumption of risk and contributory negligence warranted the instruction on express or implied agreement qualifying the standard of care. We cannot agree. By instructions No. 10 and No. 11, the court fully instructed the jury not only as to what constitutes a business invitee,...