Williamson v. Smith
| Decision Date | 26 March 1971 |
| Docket Number | No. 539,539 |
| Citation | 82 N.M. 517,484 P.2d 359,1971 NMCA 32 |
| Parties | John A. WILLIAMSON, Plaintiff-Appellant, and Royal Globe Insurance Group, Plaintiffin-Intervention, v. E. J. SMITH, d/b/a E. J. Smith Plumbing & Heating, and J.R. Trenching andExcavating Company, Inc., Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
The plaintiff, Williamson, a journeyman plumber, was employed in laying a sewer line along the bottom of a trench which had been cut to and partially through a street in the City of Albuquerque. The particular work was being performed in connection with a construction project of Warren Properties. It appears that defendant, E. J. Smith, a master plumber, was employed by Warren Properties to assume charge of the plumbing work. Smith had secured the services of Williamson through a local union by means of an employment contract between Smith and the local union. The trench had been cut by J.R. Trenching and Excavating Company, Inc., (J.R.) through the use of a trenching machine. As Williamson was performing his work in the bottom of the trench a cave-in occurred and as a result he was injured.
The soil in the area of the trench and at the point of the cave-in was composed of a loose sand overlaid by approximately four feet in thickness of hard, packed dirt. At the point of the cave-in the trench was about 10 feet 11 inches in depth.
The cause of the cave-in was attributed to the 'sloughing off' into the trench of the sand which supported the hard, packed dirt. This 'sloughing off' of the sand was due, at least in part, to vibrations caused by vehicular traffic upon the street.
Williamson, by his complaint, sought damages against Smith and J.R. on account of injuries which he had sustained upon the ground that both Smith and J.R. had a duty to shore and crib the trench and both failed so to do; that the cave-in occurred and he was injured as a direct and proximate result of the failure of both Smith and J.R. to shore and crib the trench.
In answer to the complaint Smith and J.R., among other defenses, pled assumption of risk on the part of Williamson. Depositions of Williamson, Smith and the president of J.R. were taken. Thereafter Smith and J.R. moved for summary judgment dismissing the action. The trial court granted the motion and entered summary judgment, based upon a review, as is stated, of the '* * * pleadings, depositions, affidavits, and other evidence, both oral and documentary, * * *' the court concluding that '* * * there is no genuine issue as to any material fact, that the plaintiff, John A. Williamson, voluntarily assumed the risk of the injuries complained of herein. * * *'
Contrary to the language contained in the judgment, there is no showing that material other than the pleadings, depositions, and an affidavit were before the trial court for its consideration in granting the summary judgment. Williamson has appealed from the summary judgment. We affirm.
Williamson asserts that the trial court erred in determining, as a matter of law, that he had assumed the risk of injuries for which he sought damages. In substance, it is his position that genuine issues of material fact exist which must be submitted to and resolved by the trier of facts and consequently precluded entry of summary judgment.
The question, consequently, on this appeal is whether there is a genuine issue as to any material fact presented by the matter considered by the court upon the motion for summary judgment, namely, the pleadings, the depositions, and Williamson's affidavit. This issue must be considered from the standpoint of whether Williamson (1) knew the place where he was working was unsafe; (2) appreciated the danger, and (3) voluntarily assumed the risk. Reed v. Styron, 69 N.M. 262, 365 P.2d 912 (1961); Padilla v. Winsor, 67 N.M. 267, 354 P.2d 740 (1960); Dempsey v. Alamo Hotels, Inc., 76 N.M. 712, 418 P.2d 58 (1966).
We note here that Williamson, in addition to challenging the trial conrt's conclusion relating to the assumption of risk, likewise argues that the trial court erred in determining as a matter of law that he was guilty of contributory negligence. We do not consider this latter argument for the reason that the summary judgment, which we affirm, relates only to assumption of risk.
The trial court, when confronted with a motion for summary judgment must determine whether there is a genuine issue of material fact warranting submission of the case to the trier of facts. Zengerle v. Commonwealth Insurance Company of N.Y., 60 N.M. 379, 291 P.2d 1099 (1955).
It is fundamental that issues of fact are not to be decided on motions for summary judgment and such motion should be denied unless the court is convinced from all matters before it that the moving party is entitled to judgment as a matter of law. Wieneke v. Chalmers, 73 N.M. 8, 385 P.2d 65 (1963); Butcher v. Safeway Stores, Inc., 78 N.M. 593, 435 P.2d 212 (Ct.App.1967). It is likewise fundamental that on appeal from a summary judgment testimony will be reviewed in the most favorable aspect it will bear in support of the right to trial. Cortez v. Martinez, 79 N.M. 506, 445 P.2d 383 (1968). The defense of assumption of risk becomes a question of law where the evidence will support but one legitimate inference. Stewart v. Barnes, 80 N.M. 102, 451 P.2d 1006 (Ct.App.1969).
The issue as to whether a servant assumed the risk of injury is ordinarily a fact question to be determined by the trier of facts and is always so where reasonable men might draw different conclusions from the evidence, although when one inference only is deducible therefrom the question is for the court. See Crawford v. Western Clay & Gypsum Products Company, 20 N.M. 555, 151 P. 238 (1915).
It is undisputed that Williamson was an experienced plumber and had worked in the particular trench for a distance of some 300 feet above the place where the accident occurred and throughout this area he had encountered the problem of sand sloughing off in the ditch. He said:
Williamson was aware of the danger that a cave-in could result from the sloughing off of the sand from beneath the hardpacked surface dirt. He was asked
There can be no question under Williamson's statement that he knew the trench in which he was working, or called upon to work, was unsafe. His statement to Smith discloses without dispute that he appreciated the danger of a cave-in.
A further showing of Williamson's knowledge and appreciation of danger is demonstrated by the following:
'Q And you were aware of the fact that if the sand sloughed off, that the hard portion of the ditch would cave in on top of it?
A Well, now, that's something I couldn't answer for the simple reason that most of the time that crawling sand in ditch that way will crawl in on you, you know, but that on top, nobody knows when it will turn loose.
Q So, there's always that risk?
A Yes, sir, there's that risk there.
Q You knew that risk was present?
A Yes, sir.
Q As I understand it, you would not have gone down in the ditch or worked in the ditch had it not been for the fact that you wanted to work there on that job and make some money?
A Well, I wouldn't put it that way, I just put it in the way that any working man has to work to live and I was just after a living, that's all.
I could have made just as much money on any other job as I could that one, but it's just the idea of having the job in town so you could be home with your family.'
'Q And you felt that if you refused to go down in that ditch that your employer would discharge you, is that correct?
A Yes, sir. Any time you refuse to do what the foreman tells you, you can go home.'
'Q As I understand it, you told Mr. Smith that you though that there ought to be two pieces of plywood held apart by a two-by-four or something?
A Yes, sir.
Q Did you tell him that after he told you to go down into the ditch?
A Well, yes, sir. We were there--whenever he was digging the ditch, we all stood there and talked about the ditch and were watching...
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Williamson v. Smith
...as a matter of law, had assumed the risk of injury which he suffered. On appeal, the Court of Appeals affirmed. Williamson v. Smith, 82 N.M. 517, 484 P.2d 359 (1971). We granted certiorari and Mr. Williamson asserts that the trial court and Court of Appeals have failed to take into account ......
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Hinojosa v. Nielson, 706
... ... There being a factual conflict, the summary judgment was improper ... Defendant asserts this case is controlled by Williamson v. Smith, 82 N.M. 517, 484 P.2d 359 (Ct.App.1971), cert. granted April 14, 1971, and not yet decided by the New Mexico Supreme Court. We disagree ... ...
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O'Neil v. Furr's, Inc.
... ... Williamson v. Smith (Ct.App.) 82 N.M. 517, 484 P.2d 359, decided March 26, 1971 ... Plaintiff would have us rule that there were issues of fact ... ...