*1 290 by this presented questions
The decisive those considered
appeal are identical Klantchnek, 59 N.M. case v.
in the of State disposition of and the P.2d decision in our appeal controlled
this day. filed
the latter case conviction is affirmed.
Accordingly, is so ordered. P.2d 623 Plaintiff-Appellant, THOMPSON,
Roy Dale, Co-Part Thurman
Lillard DALE and Bros.,
ners, Defendants- Dale d/b/a Appellees.
No. 5867.
Supreme New Mexico. Court of
May 4, 1955. May
Rehearing Denied 1955.
ployed 29, 1953, engaged December in performing employ- the duties ment, namely, the alfalfa in a grinding of *2 hammermill, slipped fell either thrusting right his moving arm into the blades of the completely hammermill sever- ing the large fingers three of the right hand, tip and the of the thumb and of the finger. little plaintiff’s It was the contention that the Underwood, Whatley Lovington, & Jack fall and resultant thrusting right of his Oman, Cruces, appellant. Las for arm into the blades of the machine was Ward, Lovington, Robert W. Neal & the negligence due to fail- of defendants in Girand, Hobbs, appellees. for provide ing to him a work in platform on which he was re- SADLER, quired Justice. feeding work in the hammermill uneven, was containing and loose plaintiff appellant, who The feed; boards and was covered with loose personal in below, for sought damages platform plain- that the guards lacked farm juries working while as a suffered protection tiff’s and the hammermill was At the close the defendants. hand for leaky hydrant located near a reason case, a motion court sustained trial platform surrounding whereof the ter- a directed verdict by defendants for muddy, rain became wet and slick dan- accord judgment and rendered their favor gerous. judgment that It review such ingly. is to appeal. par this The plaintiff prosecutes question, plain- On the occasion in they designated were below. engaged will be tiff was grinding ties alfalfa for calf using feed. He was a Deere John are brothers and at all The defendants power Clipper Tractor for and a Wetmore partners in engaged as material times hammermill grinding. to do the The ham- County, New ranching Lea farming and mermill was located or mounted on skids firm name Dale Mexico, under placed only and boards. It was a small plaintiff, a farm ranch The Brothers. granary. from distance a Plaintiff was a employed gen- them as laborer, was hay from another taking the workman week, plus per a hand at $40 farm eral clipped nearby who standing on a truck so em- house, a cow. While utilities happened. hay to that’s when the accident passed the baling wire my The I sides is when mill. when reversed who fed it into Just happened. discharged it the accident ground then it and blades There barn. into the through the chute changed “Q. you right. All When which by from pumphouse close was also a sides, you where did have to walk? pro- hydrant ran and drainage ditch completely IA. had to walk around which from pumphouse from the truding the truck. Cot- to time. time from leaking
water “Q. Now, platform this which on farm used pickers ton at work mounted, the mill was was it shoved created which water hydrant for their up right against granary so around muddy condition wet somewhat ground discharged grain being plain- mill, that the fact so much so No, sir, granary? into the A. while compelled wear overshoes tiff was against platform wasn’t at work. was, any- granary. say, around I’d n foot, inches two platform elevated slightly platform up *3 from end of the the of loose was made mill was located the against the barn. rough from length and of uneven boards around being dragged the hammermill “Q. ground Where was feed the picture as give the place. But to place to being discharged? being ItA. was testimony on it in his described discharged through in the barn. It run He testified: examination. direct chute which the mill the shows. Now, “Q. what your was condition were duties? A. “Q. What ground around this mill? A. the mill. To feed Well, wet, muddy. it was Now, feed in order “Q. “Q. Why muddy? was it A. Be- you to stand ?
mill, did have A. cause we had pickers had cotton out on the west side Well, I started there; mill, side, pumphouse it was and and feeding from west they blowing get that’s where had to the wind was awful their wa- then and ter, really naturally and water it was was blowing. mean used. hard —I Well, got and bad chaff dust so Water drained in the ditch from that. my up mill get sitting right breath. Our I couldn’t I on this words, side ditch. In you around east drain other walked you go feeding get at couldn’t to the mill. If step- me made hand, why mill, I reached in there off ped and as you step didn’t you stepped in mud away why accurately does that portray back the— sitting water. If our mill the boards and on the other side truck, pulled that the mill you Apr the same condition? truck, spun why you you proximately the same condition? had — out, Yes, your getting Yes, sir, wheels in or one. A. they’re approxi- sir. mately in the same condition. Now, coming “Q. this water hydrant sticking out the simply from a “Q. they Were rough and uneven? right. A. pump That’s walls? They A. uneven, are pick- you say the cotton "Q. Did just as picture shows, they had used source wa- ers there patched. been Yes, sir. That is true. ter? A. “Q. All now, right, tell jury Now, one side “Q. moving from happened what you when changed other, you or not state whether sides and up climbed on the other side ? through mud A. go had to of the mill on the morning of Decem- mud, Well, step no, I could over 29th, ber the Well, 1953? A. about it, step around the going did over all I you, can tell gentlemen, I come side of the truck. other around the end of this truck because Well, Well, “Q. you? A. I did the wind got had so bad I couldn’t up getting back- had in the mud been grind from the west side which is the my side, in and forwards
wards proper grind side to feed from. But it words, side on the west other got so bad that I couldn’t do it. We mill. had about —I believe it was about 50 muddy your feet “Q. Were hay bales of truck, on the I be- slippery you climbed when lieve ground we had eight about Yeah, other side that mill? A. I ten. come around the end there and my overshoes was wet. started to feed with my right hand. Now,
“Q. what was condition IAnd reached for a block of hay and Well, platform? of this A. it' was *4 leg this left broke away, slipped, and rough rough, there. I mean it had went out fell, under the truck I and drug been around shook armlength, Now, into this mill. don’t patched places. then in two or three why ask me how or it didn’t get more my hand because I don’t know. I Now, “Q. picture here, Plain- kept don’t know I T, how it from tiff’s Exhibit getting which shows these mill, boards on one side of the more of it. 29á -.gof open. ain’t- is You knives wide you get out did
“Q. How you and nothing but the between just table Now, is mill, Roy? A. ; honestly knives.” Jack, I can’t something, quick and was done so jury. tell testimony to con- Continuing his relative (cid:127) gone, and my hand was fast that surrounding place where ditions a-run- just remember was only thing I working, had follow- time I went I run from ning. examination: say on cross ing to possibly I just could as soon as out — “Q. had considerable ex- You have And feet, I run. get my broke perience doing farming ranching shop working and in the Dale was Mr. Yes, right sir. I’ve had a A. work? whatever, time, none he didn’t lose ' smart of it. hospital 'he because getting me to the principal “Q. your has been That just I walked around as soon as seen right. occupation? That’s That’s A. any hand. I didn’t have my my principal life is work of been No, A. you hurting? I “Q. Were ranching than farm- ranching, more so I around hurt until didn't hurt. didn’t ing. 3:30 that afternoon. “Q. your preference of the And you right “Q. Dale take Did Mr. is ranch- is to do kind of work there hospital ? A. He take me that? ing, handling cattle and such as the-hospital, right. that’s right. A. That’s you what “Q. And took doctor? necessarily “Q. in that You have Dr. Gillette. A. feed? A. I’ve lots of ground work mill have “Q. Did this sides and fed a ground a lot feed lot No, any kind? A. sir. it of it. guards as I—I’m as far There is no just any ranch or farm it “Q. On I have seen a lot of years old that has to be part of the work mills, a lot of old and even seen corn Yes, sir. A. done? they make corn and- mills for the Dale “Q. You went work I’m I, far as concerned as meal, 22nd, August along about Brothers seen, thing ain’t such I’ve what Oh, I don’t think A. it was 1953? hammermill. You’ve guard on as a late, it? right, there all your chute but got Now, your “Q. first check was only purpose: for one chute is day, is that when that would your dated that shaft out of hand. keep the *5 Well, guess be? A. I it all you would be hooked onto the tractor. right then. You drug everywhere you wanted Anywhere it. handy use that’s “Q. up you paid And were Jan- you where drug And, it. if boards uary 30, 1954, by Dale Broth- was hittin’ and drug, it right. ers? A. That’s it. It would any be on farm. And it “Q. your out What were duties was rough. Well, just anything there on the —A. “Q. Those 6’s? x A. I up. that come say won’t whether it was 2 x 6’s or Well, “Q. ‘ranch’ now the term has 2 x 4’s or 1 just x I l’s. know it’s on primarily been used. This is farm platform,, platform and the rough. is sir, work, Yes, is it not? I A. “Q. Incidentally, power take- say it was. off was mill, behind the feed and the “Q. you And used the feed that was tractor supplying power was be- cat'tle as raised there to feed a means hind it? A. It was east of it. Yes, disposing of it? A. sir. “Q. East of it. I you hand what "Q. you How often .had had oc- has been marked Plaintiff’s Exhibit Well, grind casion to feed? A. let ‘3’, and it shows a slide and then a see, me get thing me let kinda’ covered area or shield? A. Yeah. straightened say out now. I’d some- neighborhood in the of three “Q. How far was it from the edge grinding weeks that we’d been feed. of that shield down to the blades? A. Well, it was somewhere just around “Q. Somebody had grind feed length about my arm. If every day, they? almost didn’t A. been, hadn’t I’d a had more my
Well, every arm say day third any- I’d off than I did. had ground. feed to be how some “Q. words, In other shield something that had
“Q. It was you long was so got all your say you all the time. You done you arm in that get could in ? A. this kind familiar with of work are Well, figured I I did. ita’ If had type equipment. Would more, got it coulda’ there, I just how this mill feed you describe got wouldn’a this much of it. Well, A. constructed? about only way I you you can tell “Q. your had all—the So to stick en- a while ago. I said just what arm inside the tire shield order to your fingers a—on boards —on get skids mounted blades? A. said, hay, The man too. ground the you can way that but one ain’t There say, ‘Ham- He didn’t ‘Grind the feed.’ in there. can fall You in there. get mer it down.’ yourself get can’t You *6 it. reach down and grab “Q. long was that condition How Oh, No, I in existence? A. don’t know. A. this? do You couldn’t “Q. only That’s it. fall into you gotta “Q. you complain about Did ever into it. get you can way No, A. I to either of the Dale’s? it nobody plain com never I’m work- of no other you know “Q.- And ing. safety that devices safety guards A. mill? that put on you “Q.
could And could see the condi- any. not There’s ? tion there of boards A. Certain- ly.” You operated the mill. “Q. You You there. down the knives see
could And, upon con- again, the dwelt Why A. they were? knew place where he worked: ditions around certainly. “Q. say that You it was wet and mount- this mill had —was
“Q. You muddy there at the where this the ordi- than way different ined Yes, mill located? feed A. sir. Well, is several there A. nary mill? “Q. There was a hose attached to come Some of this. mounts different No, hydrant, wasn’t there? A. out on fac- wheels, come some out sir. is mount- them some of tory platforms, there, you “Q. you When went out according just It’s ed concrete. Yes, A. saw the mud? sir. way they’re mill for you ause what “Q. your You had on old over- mounted. I sure shoes? A. did. and nails hammers They had “Q. “Q. Dale Mr. never saw the con- place, didn’t the Dale at out Well, your ? dition of overshoes A. Well, they I did. imagine they? A. did; say I won’t I won’t —I keep them. usually try They that he He think did. often had a man to, you had wanted you “Q. If his house. I had to slip- at wear house a hammer and nail taken have could pers I at the times was to his house. any of pounded down those But, “Q. if those Oh, yeah, a man overshoes could. were A. boards? you muddy morning, knew gone out there could have about A man nobody else but he could necessarily it down have hammered
n you “Q. Thompson, mud- let me ask Mr. were your overshoes know that if the Dale knew of this mud No, Brothers dy? A. sir. you around the feed mill where were “Q. And, your if overshoes working morning of the 29th of nobody slick, you it and knew about December, Yes, 1953? A. sir. about necessarily know else would “Q. them One of or —A. All three Well, about ain’t that? A. them. ? “Q. you also, me Let ask Mr. “Q. stop clean the didn’t You Thompson, if Broth- of the Dale No, ? your A. sir. mud off overshoes and, ers, so, one, specify “Q. ago that You testified a while knew conditions of proper feed this feed mill Well, floor boards of mill? A. I safety From a from the west side. they an idea that have knowed it but view, point does it what difference you directly, as to answer now to tell just seems make which side? A. truth, you the honest God’s I wouldn’t why. It’s natural. I don’t know not *7 say they that did or didn’t because any it difference side than is on one they had never mentioned it to me. just the It seems natural other. more They nothing never said to me about walk on west for a man to side it, know, you you which as well as now it. It’s west side out there. of know, you got a board floor side, or might east side but house, your something, or a floor or supposed anyway you’re to feed it with you probably you got So— know it. left hand. your “Q. It was their mill? It was A. But, “Q. facing toward the feed mill. their mill, you you prefer mean would feed- they “Q. Were ever around . ing left-hand side? A. from Oh, you using mill ? A. Yeah. yeah. “Q. just matter But is a of they “Q. why reason shouldn’t No personal preference, it? isn’t A. No, A. sir.” seen it? have right, but I’ve never seen no- That’s picture fair foregoing affords a of The other body feed side.” appeared when Counsel the evidence part knowledge on defendants’ As to of interposed the motion for for defendants plaintiff’s under which conditions he work- following an- a directed verdict he rested. The testified: nouncement that evidence plaintiff on redirect ing, disability is- assumed plaintiff’s risk. We think it was facts touching the extent sue to be by jury; omitted from wheth- injury (a) resolved from the suffered er primarily negligent dis- facts. It is not defendants were the recitation in the by respect disability one mentioned puted suffered which contributed proximately (b) plaintiff, injury; to cause who with the limited education whether con- earn- either the risk labor for his he assumed is confined to manual sequent reaching. negligence; (c) on such far ings, is extensive and respect contributorily himself negligent upon are Thus it is that called to de- we to provide defendants’ omission to him plaintiff,' in cide his middle whether place safe to work. laborer, forties, experienced and an farm prima evidence a facie established Perhaps, fur before proceeding him to his case case which entitled take ther, dispose we should of a contention did, jury. single If it is on a by plaintiff made de defendants are namely, ground negligence, failure rely upon nied the law common provide part defendants him risk, defenses of assumed contributory neg reasonably place safe to work. True ligence and fellow servant sec a certain enough, respect alleged tion of the Compensation Workmen’s Act. provide proper guards of an omission to course, Of mentioned, the one last that of plaintiff, him- The hammermill. for the servant, fellow is excluded from considera so however, says he never saw one self, tion since is nothing in the evidence implication his tes- equipped and the to warrant only defense. occa supply guards effort to timony is that sion for even mentioning it is that it is handicap op- dtte interfere with listed along with the other two defenses machine. eration of the plaintiff counsel for say denied are to defendants under language of 1953 ground negligence, the one As to Comp. 59-10-5. It reads § as follows: however, and failure omission on de provide part a rea “In an fendants’ action to recover damages work, personal we sonably think evi for a injury sustained *8 part employee primary on the engaged of while dence in the of line such, sufficient to take the duty or for of defendants as death resulting Furthermore, injuries jury. personal we are not from so case to sustained in law, recovery say, a matter of is sought upon as which to able barred, ordinary action is of plaintiff’s ground cause of either of want care of contributory officer, negligence, employer, or of by agent reason of or or put upon not be counsel employer, it shall it. It would then servant of the apply large at damages to all for a defense: actions personal by employee injuries for suf- an ex- employee, either “(a) That in upon fered duty, the line of if based risk pressly impliedly, assumed or want ordinary of care. use of the The complained as due to of of the hazard “damages,” word whereas recoveries un- negligence. employer’s Compensation der Workmen’s Act are injury “(b) or death That usually designated “compensation,” and are caused, part by the want or in in whole Act, so pointed referred to in the is out. servant. ordinary care of fellow of Likewise, they “negligence,” show us that injury death “(c) That or ordinary or “want of care” are factors of part by caused, the want or whole importance no in an action for workmen’s injured em- ordinary care of the of compensation. Hence, counsel conclude: care was such want of ployee where “We submit this section of the stat- not wilful. just ute says means what it and what “Any elected to employer who has anyone training in the law provisions complied with the has mean, understands it to and that is in- 59-10-31), to (59-10-1 this act tort, brought by an action of to in- relating cluding provisions employee representative or his for surance, subject not be shall injury or death sustained while in the for liability whatsoever other line duty, negli- reason of the any em- injury personal death or gence employer, the defenses of provided; act except as this ployee, contributory negligence, negligence of action, actions at all causes servant, assumption or fellow risk proceedings law, equity, and suits in are not available.” com- statutory and whatever, all argument very This intriguing line of is for remedies rights and mon-law persuasive. might accepted and even of, per- death such account of fact but overcome employee and any such injury to sonal compelling considerations. In the other whom- persons all any and accruing to permitted not place, we are con- first except hereby soever, abolished are apart particular section sider provided.” act in this Indeed, is found. context in very upon, relied in the section, section con- foregoing language thereof, paragraph establishes in- cluding context, might very its apart from read “compensation” dubitably it refers plaintiff’s construction yield to well *9 300 provided
as for in the Com- “Workmen’s employer “Sec. 6. No in case pensation Hence, plaus- Act.” if another by governed otherwise be ible reason presence provisions for the Act of this this act who shall particular found, 'by section is to be and we have elected not to be bound this act, shall, shall demonstrate later there is such a case against suit reason, reject damages injury then him for we must the construc- on account of accept. by tion would have us suffered accident arising or out of employment course of of such We have never had occasion to construe workman be entitled to defend Act, or, this section perhaps of the better (a) negligence same on account of the said, we have not heretofore found it nec- of such workman having contributed essary However, to do so. in Sena v. injury; (b) injury that the Sanders, 83, 226, 54 N.M. 214 P.2d by caused aof fellow by defendants, statute was invoked servant; (c) that the workman had as- passed by for consideration us we because sumed the risk inherent in or inci- found the three defenses mentioned employment business, dental to such or pleaded had not been In the case below. arising from the failure of the em- bar, however, at proscribed by the defenses ployer provide premises statute, applicable, if pleaded be- appliances; which suitable defenses low and separate set grounds, among abolished; are in all such cases Pro- others, of verdict, the motion for directed vided, that such defenses shall remain interposed by plain- defendants when the only in cases where the workman is tiff rested his case. The matter being by provisions not bound this act squarely thus presented, we are neither employer and the has filed the under- disposed nor privileged postpone a deci- taking required by or certificate sec- sion. tion three hereof.” plaintiff speak While counsel scarcely It could be contended for these section as first introduced into the Act they appeared sections as in the 1917 and L.1937, 92, 3, by adop- c. even with the § they carry 1929 Act that meaning con- Compensation the first Workmen’s tion of by plaintiff. tended for They are to Act, L.1917, 83, 6, provision c. we find a § pari be read in materia with the same sec- one, very similar to as in the case also appears as it Act, tion in the 1937 1953 by L.1929, with the second enactment c. Comp. 59-10-5. We are inclined agree § 113, Acts, 6. these In two the section § with the construction advanced coun- reads, mentioned as follows: sel for defendant they say: when
301 607, provides Compensation). 46 (Workmen’s 57-905 the act “Section § Co., substantially Page Realty con- that the defenses of v. New York 59 Mont. 305, 871; Broadway tributory negligence assumed risk 196 v. P. Hoffman per- Hazelwood, are not available in an action for 10 P.2d Or. employee 1008; injury
sonal sustained P.2d Palmer In A.L.R. *10 duty. Sumner, while in line It the Me. the of his is of of habitants Town 133 337, position 1292; defendant-Appellee 711, Armburg of the in 177 A. 97 A.L.R. only ap- Co., 418, this case that Section 57-905 v. Boston & Maine R. 276 Mass. plies employers subject 665, 1408; -to those 177 N.E. to 80 Price A.L.R. v. provisions by Railway 476, Express of the act Agency, reason of the 322 Mass. they 13; fact that engaged are in 78 Timmer, an extra- N.E.2d Morris v. 243 occupation 512, 794; hazardous Mich. covered 220 Big N.W. Dietz v. act. It Muddy is intended designed Co., 480, to Coal & Iron 263 Ill. 105 apply in those employers cases of sub- N.E. 289.
ject provisions to of the act who Having that the defend concluded rejected
have provisions its and have questioned ants are not barred lan complied requirements not with the of guage Compensation of Workmen’s respect the act with to insurance.” relying Act from on the common law de questioned seems clear to us that the contributory fenses of negligence and as application section can have no oc- to an risk, question sumed remains whether cupation excepted Act. under the evidence as it stood when We have held apply it does not to em- rested, plaintiff the trial court erred in ployers of farm and ranch Koger labor. v. taking jury directing the case from the Woods, Inc., 241, A. T. 38 N.M. 31 P.2d a verdict for defendants. We think statute, Comp. 59-10-4, 255. The 1953 § established, It is well did. as counsel for expressly excepts provisions from its cer- plaintiff us, remind citing a wealth of employers. It reads: tain them, New Mexico decisions to sustain apply “This act shall not em- to upon ruling in of motion this kind the ployers private domestic servants evidence must be viewed in light most of farm and ranch laborers.” plaintiff, indulging favorable in his every legitimate inference may favor provisions cases under Decided similar therefrom and ignoring be drawn conflicts Compensation in the Workmen’s laws of Hepp unfavorable to him. evidence support states other conclusions we Co., subject. Quickel Supply have reached 58 Auto 37 N.M. on See & v. A.J. 302
525,
197;
County
declining
permit
P.2d
Sandoval
Board in
pass upon
to
jury
Young,
primary negligence
of Education v.
43 N.M.
of the defendants.
508;
P.2d
Mesich
Board
Commis-
v.
declaring
Whether the court
erred
as
McKinley County, 46 N.M.
sioners
plaintiff
matter
law that
assumed the
House,
974;
54 N.
129 P.2d
Michelson v.
risks incident to working
condi-
under the
861;
George,
218 P.2d
Miera
M.
ruling,
tions he did and in further
as a
535,
303 juries Here, hand suffered in a machine and however, significance of to a is the assumption answer, been, jury upon as might had the of risk was relied one or have case, In the the permitted Singer That is the defenses. consider it. been 84, happen. Wearing court said N.M. 159 P. precise thing that did [22 748]: feet heavy, protect his slick overshoes to as a matter of “Whether law slime, he crossed from the mud and when depends entirely was assumed risk plat- opposite side of low board case, the facts of each and therefore keep from blow- form to the dust and chaff precedent is of little In avail. he, wind,
ing strong in his face from a say at bar case we cannot only literally, did was the what said year compre- 13 girl old should have way he could get his hand cut extraordinary hended the risk caused blades, he Remote “fell into the machine.” master in fail- very likelihood that he would suffer properly adjust safety ing roller. mishap that befell him was a factor which say that We cannot the evidence shows jury might give weight considerable she was more intelligent than deciding plaintiff whether the assumed girl boy of other the same age. risks, were, they whatever un- working Certainly appears that she did not did, der the conditions he whether he possess understanding of an ordi- contributorily negligent doing so. narily prudent person. adult But question jury, think it We for the fact that the view of the evidence is in which under different one on the evidence opinions state such a that different may formed, opinions might unreasonably not unreasonably not be drawn from it as plain- whether as a as to matter of fact to whether the servant knew and com- actually did working tiff assume the risk of prehended extraordinary risk, we did and under where he the conditions he believe the court committed no error in injury at the time suffering did submitting jury.” the case to the Swartz, Singer which befell him. 22 v. N. case, Again, in the Maestas the court held 745; Leyba Albuquerque 159 P. M. properly the issue was 'to be submitted to Co., & Cerrillos Coal N.M. 164 P. There, here, jury. injury as 823; Co., Maestas v. Alameda Cattle there, hand of the P.2d N.M. 733. here, injury to his hand in a machine *12 323, Singer The cases of v. Swartz resulted when [36 N.M. Co., gust supra, Maestas v. Alameda Cattle “was struck of wind are P.2d 735] * * * present slip floor, the unlike and made on the not both damages against unguarded, common law actions for for in- stumble uncovered * * * unprotected pump jack.” from negligence, a care, want due mere- Quoting approvingly ly emphasize v. from Crawford tends to the issuable character Clay Co., 20 Gypsum Western Products & of the defenses jury. mentioned before a 555, excerpt, N.M. 151 P. to-wit: We feel way much the same about “ Whether knew and deceased the defense of contributory negligence as appreciated danger and neverthe- jury question as we do about that of as performed service, less or whether Indeed, sumed risk. much of what has he, the conditions were such that been said as to issuable character before ordinarily prudent man, an must have jury of the defense ap of assumed risk danger, known the is a matter of fact plies equal force in the case of con about which minds might of men dif- tributory negligence. Ordinarily,, contrib fer, question and the was for utory negligence is for jury to decide ”
jury.’
question.
as a facts
Maestas v. Alameda
question of assumed risk was
we held
Co., supra;
Cattle
Olguin
Thygesen,
v.
jury. As to the immediate oc-
one for
585;
N.M.
143 P.2d
Lucero
Har
court,
opin-
injury, the
in an
casion
shey,
50 N.M.
tiff to contrary COMPTON, J.,C. LUJAN designed defendants KIKER, absolve JJ., them concur.
305 McGHEE, extraordinary (dissenting). risks of the service Justice (3 Servant, 1201), Labatt’s Master & § ma- portion from that of I dissent unless, perchance, the circumstances court erred opinion holding the trial jority are such charge as to full her with the defendants. directing a verdict for thereof, knowledge in which event the testi- question, according to the Without question law, becomes one of rather himself, plaintiff he knew mony of the Bailey, than 2 Inj. fact. Per. 388. § danger- appreciated hazards all of the present grinder; at the feed conditions ous case, my This opinion, strong author- employer, and complaint made no he ity for directing the action of court in say employer actual- for sure the could not here, a verdict testimony in view of the condi- ly dangers knew the and defective of of the appreci- that he knew and platform; say em- but I tion of ated all dangers. The must have known of them. ployer Adams, hammermill rested recently platform only on which v. We said Jones why 844, 843, When asked patched rough. 1952, 510, 245 P.2d 56 N.M. platform, plain- repair the But- approvingly did not Van Kirk v. quoting from employer say 129, did not ler, 1914, answered that 19 N.M. P. tiff ,we platform, grind quoted approvingly he said the feed. from La- fix in turn Servant, 1186a: Master & batt’s § an extra- risk in this case as I class the “ ‘ servant assumes all the or- “The one; is, ordinary one created or al- dinary and all risks of service employer, by the and there to exist lowed e., extraordinary risks—i. those question employer fur- did not is no negligence to the master’s due place a safe the servant to work. nish —of dangers which he knows majority opinion the case of cites appreciates.” which he Swartz, Singer 22 N.M. “ comprehensive state- ‘This is 745, 747, support. a laun- P. for That was quali- the rule which thus ment of dry safety guard mangle case where the duty rule that it is the general fied the adjusted properly not and the thirteen reasonably provide a master to year girl old who had worked on the ” the servant to work.’ days only few testified she not mangle did Kirk case is said N.M. adjusted. In the Van improperly know was In that [19 597, 145 P. case it is stated: 133]: “* * * conclusion that the state presumption “It is our There is no ¡presented here for our con- appreciates facts a servant knows and grinding hammermill; an ordi-
sideration did not constitute feed in that he nary risk, extraordinary knew muddy but rather mill condition around the one, resulting had period existed for a considerable master, time; and, the owner and as the case that he also knew his overshoes were ap- presented us, muddy slick; is now it does not platform pear patched; knew the con- the servant and that he knew the *14 risk, dition, and therefore assumed knives in the mill unguarded necessarily con- for which dangerous. reason we in error clude that the trial court was “One who knows of a danger from the defend- directing a verdict for the another, negligence of and understands * * ant, emphasis.) (My appreciates therefrom, risk Co., Thayer In G. R. v. Denver & R. voluntarily exposes it, pre- himself to is 691, 330, 701, 1916, 363, 21 N.M. 154 P. cluded from recovering injury for an is stated: which results exposure.” from the Fitz- Servant, “Labatt’s Master § gerald Paper Co., v. Connecticut River 1186a, summarizes the rule as 1891, 155, 155 464, Mass. 29 N.E. 465. See assumption following of risk in O’Maley also: v. South Boston Light Gas language: Co., 1893, 135, 158 Mass. 1119, 32 N.E. 47 “ 161; L.R.A. Indiana Nat. Gas & Oil Co. v. all the or- ‘The servant assumes O’Brien, 1903, 266, 160 Ind. 65 918, N.E. 66 service, dinary and all of risk of N.E. 742. risk; is, extraordinary those negligence which due to master’s of 2In Shearman and Negli- Redfield on dangers he he knows and which (Rev.Ed., gence 1941), 231, it is said: § ” appreciates.’ who, “A servant with actual or con- say. opinion goes to The defect, structive notice of a due to the employed icing as a laborer cars fault, danger master’s and of the brakeman; that it not a could not he was exposed thereby, which he is and either any degree logic with contended be fully risk, by comprehending the or his risk of a he assumed.the defective brake ‘voluntarily own fault failing to do so the car was told to shoe on ride down takes his chance’ and continues in on, set track and the brakes unless exposes work him to such dan- experienced appeared he was an brakeman. ger, without reasonable excuse and plain- complaint objection, the case under In consideration the without though experience long prudence tiff testified he had had ordinary might require him risk, assumption assume in such to refuse the held to case his of the risk is peremptory the risk.” inference of becomes * * *” law. contributory Generally question of jury, testimony points All of the should he submitted to here question lips more often plain- but not the of as- discussed came from the than sumption law, of risk is matter of tiff. by quotation
shown following majority opinion The also relies on the op. Redfield, supra, Shearman and at cit. Co., case of Alameda Cattle Maestas §229: sup- N.M. 14 P.2d for port. opinion
“The better seem assumption I analyze the servant’s As the facts are case ma- negli- terially risks caused master’s different here and its gence solely supports to thé referable maxim rationale action of the trial the’ injuria. applica- volenti non attempting court. There the servant fit tion the court of this defense so as oil an unguarded pump jack with an or- effectually dinary defeat the servant’s ac- can tomato instead of an oil can personal injuries a long gust often be- tion neck. There was a while, law, got a matter of on the when the comes wind servant hand hand, wheels, contributory similarity cog the defense but there other *15 generally must be submit- In negligence cases ends. that case servant was jury. principle is, inexperienced poor eyesight; ted and had course, complained the same in both classes of had lack of guard cases, employer promised should had equip viz.: that the defense jury pump guard protect unless the fact submitted wheels, contributory assump- cog had but not done so— upon is so clear foreman had told the servant he of risk the evi- need tion afraid, he, work and that reasonable minds cannot not be continue dif- dence foreman, away. readily fix But it is seen that in fer. experienced employee case Thompson admiration for I believe be- knowledge his fact where he told truth on the cause witness question, beyond is established defect majority jury has caused to see stand apprecia- occur that often must on the assumed risk and questions contrib- voluntary accept- the risk utory negligence tion issues none in fact exist; therefore, apparent; I equally dissent. of it will be ance