Wedgwood v. Colclazier, 5310
| Decision Date | 03 January 1951 |
| Docket Number | No. 5310,5310 |
| Citation | 1951 NMSC 1,55 N.M. 32,226 P.2d 99 |
| Parties | WEDGWOOD v. COLCLAZIER. |
| Court | New Mexico Supreme Court |
Quincy D. Adams, Albuquerque, for appellant.
Albert R. Kool, Richard M. Krannawitter, Albuquerque, for appellee.
Action to recover damages for personal injuries suffered by plaintiff and alleged to have been caused by defendant's negligence. The case was tried to the court without a jury and it found the issues in favor of the plaintiff and assessed his damages at $1700.00. The defendant appeals. The respective parties are herein referred to by their designation in the court below.
The complaint attributed the accident and resulting injury to the negligence of the defendant in the operation of his truck in such manner as to cause the chain attached to the caterpillar to break, hurling it and the block against the plaintiff's right leg with such force as to fracture it.
The answer was a general denial. By way of further defense it alleged that, assuming the defendant was negligent, the plaintiff's own negligence proximately contributed to his injury and resulting damage.
The defendant owned and operated a cattle ranch near Grants, New Mexico. The plaintiff was employed by him as a ranch hand. On June 19, 1949, the defendant requested the plaintiff and one Earl L. Hovenden to go with him some six miles from the ranch house to assist in extricating a caterpillar which had been stuck in the mud at a dirt water tank belonging to the plaintiff. The plaintiff, together with Earl L. Hovenden and J. L. Thatcher, who were not employees of the defendant, accompanied him to the tank. Two days before the accident occurred an attempt had been made to extricate the caterpillar without success. At that time the block and tackle had been rigged up by the plaintiff and Cecil Colclazier.
The court made the following findings of fact:
'2. That on the 19th day of June, 1949 plaintiff was an employee of the defendant, and on said date, while acting in the course of his employment, plaintiff was injured.
'3. That on the 19th day of June, 1949 and at the time of said injury, defendant was attempting to withdraw a caterpillar tractor from the mud with a heavy truck by using block and tackle and, without warning to plaintiff, so carelessly and negligently manipulated said truck as to cause the chain to break and the block to strike plaintiff on the right leg.
'5. That defendant's negligence was the proximate cause of the injury to plaintiff.
All assignments of error are predicated upon the making and refusal to make certain findings of fact and conclusions of law.
The propriety of the findings made and those refused depended upon the view of the facts which the court took. As the matter presents itself to us, we have but to decide, therefore, whether there is evidence in the record, which, if believed by the trial court, was sufficient basis for the findings.
The following diagram, Exhibit 1, being a photostatic facsimile of the original, portrays and explains the evidence. Evidence adduced in the trial tended to prove the following:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
When the parties arrived at the scene of the accident the defendant ordered the...
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...with the facts properly found by the trial court in support of the judgment. Therefore, the refusal was not error. Wedgwood v. Colclazier, 1951, 55 N.M. 32, 226 P.2d 99; Bezemek v. Balduini, 1922, 28 N.M. 124, 207 P. We find no merit in defendant's contention that Ward, a disinterested witn......
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...of the final decree and judgment. Therefore, the refusal was not error. Alexander v. Cowart, 58 N.M. 395, 271 P.2d 1005; Wedgwood v. Colclazier, 55 N.M. 32, 226 P.2d 99; Bezemek v. Balduini, 28 N.M. 124, 207 P. In the case of Chavez v. Chavez, 39 N.M. 480, 50 P.2d 264, 267, 101 A.L.R. 635, ......