*1 pellee pro- question to answer about entirely an different conversation be- pounded on cross-examination: tween the to this trial action. The objection sustained an to the simply agreement “If this was an on the proper it cross-ex- you your Phipps sold interest Mr. amination, with statement wit- you why sign did have Mr. Coulter that?” might ness- appellant put called when the (Meaning agreement.) dissolution on his case. The court did not err in its scope is largely cross-examination ruling. McDonald, supra. Krametbauer v. resting matter sound discretion of judgment will be affirmed and the say the trial court and we can not that the case remanded to the district court with in- court abused sustaining such discretion in structions judgment, enforce its and to objection an to this Krametbauer render against also the sureties McDonald, 104-P.2d 900. supersedeas bond, and it so or- appellant next claims that the dered. refusing permit erred in the dis agreement BRICE, solution J., introduced in evi participate. C. did not b.e during dence the cross-examination of the LUJAN, SADLER, McGHEE, JJ„ appellant. It was admitted in evidence as concur. part appellant’s This assign case. ment is also without merit. assignment fourth is that the refusing

court erred in allow a witness concerning testified a conversa had appellant tion had with the to be cross-ex P.2d concerning another amined conversation THWAITS KENNECOTT COPPER COR- parties to this case. The record PORATION, CHINO MINES DIVISION. Boyle Thomas H. had been (cid:127)shows 4990. No. appellee and had testified called appellant' specific made statement Supreme of New Court Mexico. appellee if the had the effect been April he, appellant, patient with him money, but now that have suit had pay any would not of it filed unless

been he judgment against him. On gave

cross-examination the witness was asked *2 Newell, Cruces, B. appel- of Las for

J. lant. Shantz,

Woodbury City, & of Silver for appellee. amicus, Neal, Carlsbad,

Caswell S. curiae.

PER CURIAM. original opinion is om withdrawn Rehearing for Motion and the substituted: BRICE, Chief Justice. appellant, of a ac- widow workman

cidentally employ— killed course of his respective in ment counsel said ment, for between filed he'r claim which, of amount and received .without court, upon the district prejudice litigate right “It fails to claimant’s because appellee, was dismissed Compen- under the Workmen’s state claima upon which re- New Mexico sation Act of “Plaintiff the time hus- states he'r be granted.”

lief can injured band he'was the rear riding was train; platform ore alleged grounds .said platform equipped with said was are as follows: undersigned hereby “The asks prevent employees fall- rails compensation under the Workmen’s ing slipping platforms; said off Mexico, Compensation Act New and as this claimant is be- informed and Eugene Bostick of her husband upon be- lieves information injured Thwaits, on November was who lief be that the injury states the fact to 14th, 1944, working while a brakeman her husband the direct result corpora- train of the an ore defendant Company failure said tion, in- as a- result of died said Company said since safety device. That *3 day, following the to-wit: No- juries on accident installed de- said such has vember upon cars of the vices kind time in- receiving “That at the of said riding at the time he received decedent was average receiving the decedent was juries injuries.' his fatal earnings $60.00; that at the weekly of should “That said de- find that dependent upon he had time his death of company negligent failing fendant three your him claimant mino'r children provide proper here- to devices as living with decedent claimant. then alleged and that failure inabove such caused provisions under the 57-918 “That of Sec. decedent, claimant the death of the Ann.1941, Sub- Sub-sec. of N.M.Statutes to an increase would be entitled of 50% the surviv- (2) (a), the sec. claimant compensation payable decedent’s in the to dependent three children ing widow with dependents.” per entitled to receive be $33.00 alleged dismissal are as fo'r grounds week; company has defendant said follows: per claimant the of paying been to sum $18 appear from said.claim “That it does amount is' the week, that said asserting Eugene death of the workman ap- the paid to under the statute maximum be from the failure Thwaits, resulted case; by agree- plicable the Bostick to instant together other sums deceased, for with such employer of the. to disability. paid of said deceased have required or that the death as law negligence of the from workman resulted dependents the time “(2) there If supply failing to the death, of payment consist the shall industry devices in fifty dol- to exceed one hundred and the workman. protection of for the use or the expenses and funeral ($150.00) lars percentage specified of the hereinafter that de- appears said claim “That it the earnings, subject average weekly the death has, date of the fendant since act, continue for the the limitations of plaintiff paying been said sum of Eighteen Dollars ($18.00) per week, period three hundred ^[300] weeks workman; paid Pro- be the date of such amount the maximum compensation death Act of vided the total Compensation under Workmen’s payable hereinafter New Mexico.” mentioned, shall specified, unless otherwise dis- Court sustained per ($10.00) ten than dollars less each stated. miss ($18.00) eighteen than dol- week more no'r the briefs presented per lars week. appellant is en- is whether thereto, dependents “If there entitled hundred for three per week titled to $18 shall be to such concluded, per weeks, the Court $33 as person appointed dependents or to weeks, ap- that number week same for benefit court to receive ’ pellant asserts. * * * dependents com- upon the bear following statutes basis, puted on the and dis- question: persons: the following tributed to * * * “(a) children, if To the child “1. there be compensa- entitled or widower from no widow proximately results “In case within the period one ^[1] tion, twenty-five ^[25] per centum of ea'rn- year, shall be in amounts ings deceased, ten ^[10] per centum each two child in excess of persons follows': additional for and to pensation shall be “(1) If there be no limited dependents, to the funeral com- centum, ^[2] with a be maximum of to their guardian. *4 sixty ^[60] per widower, or expenses to exceed one hundred and “2. To the not widow if there fifty -dollars .($150.00) .expenses be no children, forty ^[40] -per .centum of hospital earnings, medical and provided for services not to exceed a maximum com- per pensation ($16.00) compensation titled to normal the rate of sixteen dollars at of per week. week for 300 $1.8 weeks. widower, there or if

"3. the widow To charge The that the time deceased be one child, forty-five ^[45] per centum of his injury was riding on the rear plat- earnings. form caboose on an ore train equipped devices, with reasonable safety widower, if there or

“4. To the widow be two [2] earnings. children, fifty ^[50] per centum ployees from falling rails to or slipping off the prevent em- be three centum of “5. To ^[3] earnings. the widow children, or fifty-five widower, ^[55] there per platform, lant’s result device, of such failure to claim was the second that his death compensation. provide was the appel- direct "othenvise does question against specified or widower titled to a be per apply to compensation payable in hereinafter dollars phasis.) specified, centum ($18) “6. four follows, week. apply. dollars To per week nor ^[4] shall not Sec. the widow earnings. maximum Sec. specified” “Provided proviso in Sec. if there mentioned, unless otherwise these more páragraph, but per 57-918 proviso, appellant. be paragraphs week,” children, sixty less than compensation of $16 N.M.Sts.1941. * * *” o'r mo're than therefore, does not no widower, if there paragraphs any of determines the total children that the widow 57-918(a) ten is otherwise (Our em- it eighteen ^[60] ($10.00) proviso is not death this (2), per en insurer, guarantor vided resulting tion increased if an lowing : part of the from the sults vices otherwise of, workman “ * * * this failing employer from the further, statutes of New Mexico claim and not from employer only payable law, to, fifty per In supply negligence o'r results or in case an use under any any centum sureties shall be recoverable provided by additional of, negligence on the industry which this the failure (50%). workman act shall of said are the fol- to, applicable employer or death liability statute, devices protec- Pro- em- de- re- holding act ployer except shall correct under trial court was that.this employers from prohibit en- three children are construed to appellant and that the *5 fences, emphasis) liability.” Sec. gates.” (Our and additional against such insuring 67-2816, N.M.Sts.1941. N.M.Sts.1941, 57-907. Sec. is in Webster’s word “rails” is defined injured' workman’s re- injury Dictionary fifty per cent his International follows:

increased the failure (1) sults from extending “A bar timber metal or required devices provide to another, post support as a from one or to negligence law, (2) fromor and balustrades, barrier, fences, guard or supply reasonable failing to employer “in * * staircases, *. construction etc. A use for the general use devices fence, posts, or a etc.” bars workman,” any ini’f protection or provided by plaintiff, According are the claim filed industry safety to husband, was her statute. riding platform on rear of a caboose guard rails whether The first is train, ore which was attached to an platform of a attached caboose around safety devices, equipped with reasonable cars, prevent employees to ore a train of to rails, prevent em- guard to off, safety device falling is a ployees falling slipping or off the by law. platform; that his and and ques- mining laws The New Mexico were the results of the failure of the direct in 1933. Following were enacted Sec. tion company to devices. 67-2001, supra, a statute in terms “plat- question whether the word is many provi- requiring devices, quoted in- forms” as in the statute used specific safety the use requiring sions platform on a caboose attached cludes a methods, devices, processes and to safe- operated “in to an ore train is .employees guard against mine statute not lim- or about a mine.” The does death; among following: which “platforms” any particular it the word wheels, belts, gears, fly “All all ex- and ones; kind, stationary but it nec- such as parts posed moving machinery that are lia- essarily applies known as structure a injury, parts dangerous ble cause mii;e in or platform about machinery and about a used mine shall necessarily go workmen must guarded prevent appropriately inju- their labors. performance persons. Stairs, or other to attendants ries Indeed, platform dangerous walks in or of a platforms, and about provided rails, 'rails, moving shall be attached' the mine without train, dangerous place brief, a much more lant’s was therefore abandoned. stationary than one. Gutierrez, work Candelaria v. construction an unreasonable ju- But this court is not without say “plat- the word statute risdiction question, to review platform in should not include the forms” do so in its discretion mo- own *6 opinion that tion, We are of the the judgment the of the trial is specific provision quoted ap- of the statute inherently fatally and defective. platform of caboose attached plies to the a 442, Perea, We stated v. 25 in Baca N.M. operated in to an ore.train 184 482, P. 484: appellant’s mine connection about the “ * * * It is true this court has held operations. mining many it will not examine a that Janney Fullroe, was held 47 N.M. v. record, exceptions unless have been taken 145, 423, 144 P.2d violation of a complained and error the of is the called to of the employer, statute section the attention of the trial court. Neher Ar- v. to a which resulted in an mijo, 67, 517; 11 N.M. 66 De v. P. Baca fifty per entitled the latter to the cent ad- Wilcox, 922; [346], 352, 11 N.M. 68 P. compensation provided by ditional law. Fullen, 212, Fullen v. 21 N.M. 153 P. 294. 57-907,supra. See Sec. exception well-recognized a There is to this rule, notice, effect the court will properly had failed to exception exposed presentation, without machinery juris- gears of in which may- other and matters which

the workman’s dictional caught arm was and in- inherently fatally render a case jured. and defec- require tive exception and reversal. This allegations regard claim in the to, was stated the cases above referred ing the cause and manner and also case of Goode v. [Colorado bring the workman the case within the Co., 461, 856, 16 Loan 117 P. Inv.] N.M. purview of 67-2816, Sec. 57-907 and Sec. p. 894, and in 3 rule is C.J. supra; proven and if will entitle the claim stated, page on 905 of and the same work fifty per ant to the cent additional com exception, will be an found which is that pensation provided by the former statute. question whether pleadings support part While this judgment of the claim was and warrant one which court, presented district proper, to the and denied arises the record by it, appeal and the tested writ error or court’s action thereon as from the error, signed exception. argued appel judgment it is not without 114 Diamond, 477, 988, 20 an- 27 202 on an v. P. is rendered N.M. judgment

“Where a 1527; Williams, Kemp A.L.R. 30 v. N.M. facts suffi- state clearly fails swer which 299, 232 P. v. Springer Ditch Co. good com- to a a defense constitute cient Wright, 457, inherently 31 P. N.M. 247 judgment we plaint, think exception defective, that no fatally In Perea, supra, Baca we held that v. necessary.” same the rendition judgment good rendered an to a answer Al City of Burg rel. ex complaint, In State not state facts that con- did 242, 576, al., P. N.M. buquerque defense, et inherently stituted a and fa- was tally we said: defective. In the case before us dismissing a good entered review “Ordinarily court will complaint upon a motion that no stated below question not raised in grounds for dismissal. is no There sub- 10), Ellison, N.M. (State v. stantial difference between the cases. two by as- Supreme Court presented Kreugel et (Weggs al. signment error justice require pass The ends us to 730); or one al., 24, 205 P. et question, though presented presented in briefs of argued or appellant’s brief. N.M. Berlin, 27 (Hawkins v. opinion We are trial *7 Concklin, 27 N. 108; Armstrong v. 201 P. sustaining appellee’s erred motion to dis- original new 550, 985), or a M. P. miss, the judgment and that was in- entered rehearing on motion question raised herently fatally defective. 319, Bank, N.M. Nat. (Ellis Citizens’ v. cause reversed and remanded with except a case 166), 34, 6 193 P. A.L.R. to the district instructions set district where the judgment, aside its reinstate the cause fundamentally erroneous inherently and docket, appellee’s 443, overrule to dis- Perea, page] 25 N.M. (Baca [at v. proceed miss and 291, Dillard, a consideration 482; Crawford v. thereof not inconsistent herewith. 513).” 191 P. so ordered. Whitson, 32 N.M. see: Schaefer v. Also 618; Lopez (on re- 259 P. Jaffa SADLER, McGHEE, 988; LUJAN, hearing), 38 31 P.2d State N.M. COMPTON, Garcia, JJ., N.M. 143 P. State concur.