Wood v. Southwestern Public Service Co.

• Decision Date: 21 March 1969
• Docket Number: No. 263,263
• Parties: Betty Jean WOOD, Administratrix of the Estate of Ronald Wesley Wood, Deceased, Plaintiff-Appellant, v. SOUTHWESTERN PUBLIC SERVICE COMPANY and White's City, Inc., Defendants- Appellees.
• Court: Court of Appeals of New Mexico

Page 692

452 P.2d 692

80 N.M. 164

Betty Jean WOOD, Administratrix of the Estate of Ronald Wesley Wood, Deceased, Plaintiff-Appellant, v. SOUTHWESTERN PUBLIC SERVICE COMPANY and White's City, Inc. Defendants- Appellees.

No. 263.

Court of Appeals of New Mexico.

March 21, 1969.

[80 NM 164] C. N. Morris, Carlsbad, for appellant.

Harold L. Hensley, Jr., Hinkle, Bondurant & Christy, Roswell, Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, Tex., Jay W. Forbes, McCormick, Lusk, Paine & Feezer, Carlsbad, for appellees.

OPINION

WOOD, Judge.

Ronald Wesley Wood died as a result of an electrical shock. He received the shock when a metal pole he was holding came into contact with a high voltage electrical line. His administratrix sued for his wrongful death. At the close of plaintiff's case, the trial court directed a verdict in favor of defendants. The trial court ruled that decedent was contributorily negligent as a matter of law. The issue, here, is the correctness of this ruling.

Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364 (1966) states:

'Ordinarily, the question of contributory negligence is a fact question to be determined by the jury. * * * The question of contributory negligence is properly taken from the jury only when reasonable minds cannot differ on the question and readily reach the conclusion that plaintiff's conduct falls below the standard to which he should have conformed for his own protection, and that this negligent conduct on his part proximately contributed with the negligence of the defendant in causing the injury. * * *'

Compare Stephens v. Dulaney, 78 N.M. 53, 428 P.2d 27 (1967) and cases therein cited.

Decedent was contributorily negligent if negligence on his part proximately contributed to cause his death. See Lujan v. Reed, 78 N.M. 556, 434 P.2d 378 (1967); N.M. Uniform Jury Instructions, No. 13.1.

N.M. Uniform Jury Instructions, No. 12.1, states in part:

'An act to be negligent must be one which a reasonably prudent person would foresee as involving an unreasonable risk of injury to himself or to another and which such a person in the exercise of ordinary care would not do.'

See Lujan v. Reed, supra.

In measuring decedent's acts against this standard, we view the evidence in the light most favorable to the party resisting the motion for a directed verdict. Accordingly, we indulge every inference in support of the claim asserted by the administratrix and ignore conflicts in the evidence unfavorable to the administratrix. Bank of New Mexico v. Rice, 78 N.M. 170, 429 P.2d 368 (1967); Nichols v. Texico Conference Ass'n of Seventh Day Adventists, 78 N.M. 787, 438 P.2d 531 (Ct.App.1968). We review the evidence in the light of these rules.

Decedent, sixteen years old, had completed his sophomore year of high school with average gardes. He obtained employment with White's City, Inc., working a split shift. To avoid four trips a day to and from work, he moved into a trailer at White's City. The trailer had been in position beneath the high voltage line more than one and one-half years before decedent moved in.

Decedent had lived at the trailer from seven to ten days before the accident occurred. Throughout this time the high voltage line was 'open and obvious and plainly visible.'

About 9 or 10 o'clock at night, decedent, with a friend, went to the trailer to install a television antenna. They turned on the lights of two cars in order to see. They raised the metal pole of the antenna; the pole was twenty-eight feet long. The pole came into contact with the high voltage line.

There were no warning signs attached to the line nor to the poles supporting the line. There is no evidence that decedent was specifically warned about the high voltage line or dangers in connection with it. Decedent had no technical knowledge of electricity. However, both decedent and his friend knew that if they stuck a metal object against an electrical line, they would be shocked.

The friend stated: '* * *, 'We knew there was some overhead power lines, but in the dark, we couldn't judge the height. * * *"

He also stated: '* * *, 'We were seeing if the pole would clear the lines."

The friend testified that although he knew of the line, it never made any impression on him. He testified that he wouldn't have attempted to put up the antenna if he had any idea there was danger in connection with it.

Even though decedent had not been warned about the line, he knew the line was there. Even though he had no technical knowledge of electricity, he knew that if he placed a metal pole against an electric wire he would receive a shock. He is therefore held to know that if he...