Williams Ex Rel. Estate of Martinez v. Town of Silver City

оtherwise, why im- al the court posed may sentence what it correct Angelita WILLIAMS, Individually and as wrongly by vacating Representative did the sentence for Personal and Administra- Martinez, trix of the Estate of David De- breaking entering imposing al., ceased, Plaintiffs-Appellants, et mandatory place sentence in the one vacated, April 28, as was on 1965.” done CITY, Municipal TOWN SILVER OF a [Emphasis added] Corporation, Defendant-Appellee. By point this third defendant No. 885. (cid:127)argues that his enhanced sentence was Appeals of Court of New Mexico.

punishment because rather of his status a than crime Sept. 22, because commission of 1972. constitutes cruel and unusual and therefore Denied Oct. Certiorari 1972. Eighth

punishment, prohibited by Constitu Amendment of the United States Califor

tion. Defendant cites Robinson v. L.Ed. nia, 1417, 8 U.S. 82A S.Ct. (1962), where the States Su 2d United and un preme held that it was cruel Court Eighth punishment under usual of the United States Constitu Amendment having person jail tion to sentence Although narcotics user. the status Supreme has held the New Mexico rather criminality ais status that habitual point. offense, than an Robinson is not convicted here was not The defendant being an habitual but of the com .criminal act, with in of a criminal assault mission felony. He

tent to commit violent punished of that being for the commission n crime by a substituted enhanced sentence People Luckey, prescribed statute. Ill.App.2d 234 N.E.2d 26

By point the de his fourth and last attempts challenge fendant the constitu ground tionality on the Act Mex outside the State of New convictions considered under our Habitual ico are sen Act and that an .enhanced Criminal may punishment for acts constitute tence Mexico. of New done outside State of defendant’s convictions both Since Mexico, standing he to chal New lacks Act lenge constitutionality Hines, ground. See State v. and sentence is affirmed. ordered. It is so PIERNANDEZ, JJ., concur. SUTIN Ransom,

Richard E. Smith & Ransom Offices, Law Albuquerque, plaintiffs- appellants. Dickson, Jr., Hilton A. City, Silver D. J. Cruces,

Weir, defendant-appellee. Las

OPINION

WOOD, Judge. Chief boys, ranging age Four from seven to years, twelve suffocated when the cave they playing collapsed. cave arroyo was in of the bank an in Sil- City (Town ver City). of Silver Part arroyo was within area which had been dedicated as street. In the result- wrongful ant death, action for plaintiffs. verdict was for The trial court entered favor of defendants ap- notwithstanding verdict. Plaintiffs peal City cross-appeals. ‍‌​​​​​‌​‌‌​​‌​‌​‌​‌​‌​​‌​‌‌‌​‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌‍and Silver questions We consider directed to City, discussing is- Silver three sues: (1) the location the cave in rela- area; tion to the (2) dedicated Silver City’s “possess” claim it did not area; City’s (3) dedicated Silver claim immunity. sovereign disposition Our a remand for new trial. there Because discuss, is to be a we issue new trial expenses whether funeral and burial proper damages were a item case.

Location the cave. shown

Corbin Street as a dedicated survey filed street on a Streets, the 1879. Between 14th and 13th arroyo enters the dedicated area from northeast, in a crosses dedicated area in a southwesterly and turns direction southerly to 12th direction Street. The whether Silver was the and, westerly bank thus, cave was in the ar- dedicated area with whether royo duty boys. near this turn. Whether this cave had to the or west of the area dedicated was within suggested It ques has been that the as Corbin the issue under this Street is tion City’s possession of Silver was never point. City contends the evidence Silver disagree. raised in the trial court. We “. cave-in shows . . and accident pre-trial “[njegligence order lists westerly site line of was outside defendant” as one of the contested issues way private property. dedicated and on implic legal of fact and the issues as those .” answer is that the evidence Our opening the issues of fact. In its of the location of the cave in relation to statement, City Silver jury informed the conflicting area the dedicated is and there that it denied any negligence there was for sup- is which substantial evidence would responsible.” it was “liable or Sil port a determination that the cave was City’s ver motion for a directed verdict at within area. the dedicated Under the rules plaintiffs’ the close of case asserted the reviewing for evidence where there has cave-in to, v/as belonging not on land judgment notwithstanding been a the ver- by, controlled possessеd maintained or dict, the trial not have court could repeated it. This claim was in a motion judgment entered the on the basis of the for a directed verdict at the close of all the location of the cave. See v. Bar Garcia evidence, expanded and to refer to an al Markets, Super Inc., 92, ber’s 81 N.M. 463 leged any acceptance absence Silver P.2d 516 City of the dedicated objecting area. In City Silver asserted it could Possession the dedicated area. possessor not be liable aas of land until jury was instructed that accepted by Silver dedicated area had been it. ? City City’s could possession be found liable under either of The issue of Silver of the theories—ordinary negligence two or at dedicated area is before us for review. aspect tractive nuisance. An City’s liability predicated Silver is on its theory City’s under either is that of Silver alleged possession arroyo bank duty City to the decedents. Latimer v. of where the cave located. Plaintiffs’ Clovis, (Ct. 495 P.2d 788 theory City’s possession as to Silver “ App.1972). concerning In instruction 14 . way . . that the dedicated had been negligence, the trial court informed the accepted by . City] as a [Silver City “possessor that Silver was the law, matter of and that . . . [Silver way” outlined basis therefore, City] was, possessor of the holding possessor of land liable as land. .” City . . Silver contends there stated for licensees in Mozert v. supporting “acсeptance” no evidence an Noeding, N.M. and, area as a matter of dedicated addition, (1966). In the instruction on at law, “acceptance” there there- and, was no implies City tractive nuisance that Silver fore, possession. Thus, parties both was the of the dedicated area. agree “possession” depends “ac- are with the We not concerned status of ceptance.” “possession” in- No issue of boys four issue because no as to their sta dependent “acceptance” presented trial; during tus was raised a status consideration. question presented was not the trial Although City appears court until moved for Corbin Street as Thus, early notwithstanding the dediсated street as the ded verdict. boys’ place ication as to the status was raised alone was insufficient City’s possession. too late to be the Fre dedicated area in Silver review. denburgh Lines, Inc., “acceptance” required. An v. Allied Van 79 N. is also Watson Albuquerque, M. concern N.M. Our Neal, drainage of Carlsbad v. structure was installed without addition, proceedings. condemnation State In map showing ex v. Board of Com’rs of Ber there is a in evidence rel. Shelton Corbin open County, existing 161 P.2d 212 to be an nalillo street both north of 14th and south of 12th Streets. McQuillin, supra, See 33.57. This evi- § Here, undisputed fact that it is an support dence would a factual determina- 12th Corbin Street "... between “acceptance.” tion that there had been 14th . . has never been Streets . issue, however, is whether these facts opened, by . . . improved, or maintained require a determination as a matter of law City pedestrian for vehicular or Silver City accepted that had Silver City traffic. . . .” relies on Silver they area involved this suit. We hold fact, undisputed together this with evi- do not. it, by asserting dence non-use there “ and, acceptance, therefore, pos- was no no city’s liability by . . The ac- . session, a matter of law. fact that as ceptance only arises when it has done some opened the area had never been or main- unequivocally act which shows an intent to tained as a street and the evidence of non- jurisdiction property assume the over dedi- ” require ruling use does not a as a matter cated. . . . The burden was on acceptance of law that there had been no plaintiffs prove acceptance, to and the by City. accept- question Silver proof clear, satisfactory must be un- depends part ance on the extent of the equivocal. City Albuquerque, Watson v. public use consistent with the dedication. supra; City Neal, supra. of Carlsbad v. Phillips Company City Mercantile Al Here, support we have facts which would buquerque, finding acceptance, a but there is also Here, there is evidence that the dedicated indicating evidence an absence of an intеnt by area was used to a certain extent Silver jurisdiction to assume over the dedicated City and there is no evidence that this use vicinity area in the of the cave-in. As ex- was inconsistent with the dedication. See amples long period of time that has —the Beverly City Wood Associates v. of Albu elapsed dedication, since the and the fact querque, opened that no street has been main- or McQuillin, Municipal Corporations, § tained in the dedicated area. The evidence Thus, (3rd 1964). 33.50 Ed. revised the rely plaintiffs unequiv- on which is not an trial properly judg court could not enter showing ocal acceptance. of an The trial notwithstanding ment the the verdict on instructing jury, court erred in as a that, law, basis as a matter of there had law, City matter of that Silver was acceptance no been of the dedicated area possessor of the dedicated area here in- by City. Silver volved. Plaintiffs’ contention that Alternative to its motion for verdict, acceptance notwithstanding uncontroverted facts show an City Silver dedicated area as a matter of law. moved for a new trial. the trial Since These facts are to the effect that court granted Silver could not have City had exercised judgment notwithstanding control over the dedi motion for cated area of accept- Corbin between Street 12th verdict on the basis there no was by and 14th installing bridge Streets a by City, foot аnce of the dedicated area Silver pedestrians, by for bridge ruled, erroneously for and since vehicular it as a matter point, by law, traffic at drainage City another that Silver structure installed in the being Corbin of the area (it Street involved dedicated area jury), south of 14th fact Street which for the the alternative motion arroyo, drains into the granted. fact the for a new trial should been have The trial court instructed the that it immunity. Sovereign expenses could consider funeral and burial City contended Silver at that arriving any damages at the amount of liability could have because objected, City' to be awarded. Silver sovereign immunity. (cid:127)of The trial court re- claiming expenses funeral and burial jected City this defense. Silver advances were not recoverable a matter of law. justification judg- defense as a for N.M.S.A.1953, 22-20-3, Section states notwithstanding ment the verdict. Barker jury, arriving damages that the at the Fe, Santa awarded, may be take “. . into con- . applied (1943) the rule a munici- pecuniary injury injuries sideration the or pality corporate could be liable in tort for resulting surviving from such death to the proprietary functions but was immune party parties judgment. entitled to the governmental from functions. performed function asserts arroyo it in this such as use of The uncontroverted fact is that the drainage purposes, governmental expenses funeral and burial incurred and, thus, it was immune. Williams, Monje and and thе amount of expenses injury. pecuniary those shows a disagree. We 5-6-18 Sections Monje undisputed The evidence is that was 5-6-22, 2), spe (Repl.Vol. N.M.S.A.1953 boys the father of three of the and that cifically against municipali authorize suits boy. Williams other was the mother of the negligence, ties provision based on with the mother, They, parties as father and are en judgment against that no shall run the mu 22-20-3, jrtdgment supra. titled to under § nicipality, “. . . unless there be liabili- Thus, expenses the funeral and were burial ty insurance to cover the amount and cost Hayes, Hansen recoverable. See judgment.” 5-6-20, of such Section Ore. Board, See Chavez v. Mountainair School properly The trial court could not have granted Answering interrogatories, City judgment notwithstanding the ver- Silver has comprehensive general admitted had dict funeral and burial on the basis that lia- bility expenses proper damage. No claim were not items of insurance. has been made that the insurance is insufficient to cover parties by Other issues discussed the amount of the verdict in favor of (1) concern: attractive nuisance —see Lat- plaintiffs. Thus, question immunity Clovis, supra; City (2) imer v. ordi- from litigation suit exists in this at this nary part City; (3) care on the of Silver County time. Baca See v. Board of Com- assumption contributory negligence and missioners, part boys; risk (4) on the of the deceased assumption contributory negligence and part parents; (5) risk on the and The trial court could nоt have two items excluded as evidence. None of granted judgment notwithstanding the ver- justify judgment these issues not- would dict on City basis Silver was im- withstanding the verdict. liability. mune from judgment notwithstanding The the ver- erroneous, dict was and reversed. Silver expenses. Funeral and burial City’s objection instruction 14 which de- An uncontroverted fact stated in the possessor clared it a of the dedicated area pre-trial order is: burial “Funeral and ex- as a matter of law should have been sus- penses necessary and reasonable in tained. Because this error the verdict amounts, following $815.10, by incurred plaintiffs cannot reinstated. in favor of be Monje, $465.66, Plaintiff and incurred judgment is reversed the cause The and plaintiff This Williams.” uncontroverted is remanded for a new trial. fact jury objec- was read to the without tion. It is so ordered. instructions,

HENDLEY, J., Pursuant to these concurs. based upon the issues in the com- SUTIN, concurring dis- J., partially pensated plaintiffs. Possession de- senting. way fendant of the dedicated was not an issue the case. SUTIN, concurring, Judge (partially only Instruction 14 was No. claimed dissenting). upon in the crack instruction wall which a of the part I result concur granted new trial was because it stated the majority opinion judg- reverses the “possessor defendant was the of the dedi- trial o. v. I dissent because a new ment n. way.” cated The granted defendant. part Instruction 14 reads No. as fol- plaintiffs should be reinstated. lows : tragedy years occurred аlmost five There in force in the Town of delay ago. retrying this case will City at the time of Silver the occurrence parties. on both Ex- have adverse effects plat of Town perience glow teaches that aof Survey. known the Fraser Cor- when fades the burdens of the courtroom bin Street is shown as a dedicated street repeat themselves. Survey. on the Fraser The Bosworth majority opinion grants a new trial Survey depicts is in Plat which evidence trivial, legal question consisting of a way, the water course and phrase in an instruction admitted de- point of the cave-in. aAs opinion fendant to be grants true. The re- way, dedicated the Town of Sil- defendant, lief to a noble physi- ver way doing justice. cal harm the pub- caused members of lic a condition the land. . . . A. The Trial Court did not err in Instruct- [Emphasis that, Law, added.] Jury the ing as a Matter of City the the Possessor zvas of paraphrase This instruction is a of Re- Dedicated Area. statement, 2d, 342, adopt- Laws of Torts § holds, majority opinion “The trial 396, Noeding, ed in Mozert v. 415 instructing jury, court erred in the a (1966). 364 instruction substitut- law, matter of that Silver the public” ed the words “members of the for possessor of the in- dedicated area here licensees,” “persons” “such and the word agree. volved.” I cannot for the word “licensees.” plead- This issue was not raised in the objected Defendant to this instruction on ings, in the or in the evidence instructions. ground . . “. . the Defend- ant, 1, By possessor way, as the a instruction the trial dedicated No. court set of liability until ‍‌​​​​​‌​‌‌​​‌​‌​‌​‌​‌​​‌​‌‌‌​‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌‍any forth claim . . . such omitting of way opened possession dedicated fact been reference to of has the dedicated public By accepted by use and the Defendant area. instruction No. the trial court [Emphasis .” set forth the of . . defendant and defenses added.] any possession omitted reference to admitted was the Defendant dedicated area as a defense. way. dedicated admission of good By given in because the evidence is the trial ad- faith No. court posses- undisputed part plain- was the vised the that if either that defendant evidence, any claims, an proved tiff its sor. There is nоt iota of one of and none facts, therefrom, proven, to be drawn the affirmative defenses inferences gov- plain- person, corporation, other then the verdict should be for that possessed objection agency dedicated tiff. There was in- ernmental to this way. struction.

285 objection acceptance Defendant’s was limited to the court alley held that of an dedi- upon nonacceptance issue of based cated in 1909 occurred in 1962 when the way, city though the dedicated even defend- a survey conducted alley to locate the possessed opening alley ant it. and in purpose for the installing sanitary sewer. From 1909 to Nonacceptance by was not (a) Defendant alley opened was not and was an Issue in this Case. blocked trees and underbrush. Like- Nonacceptance by defendant was not an wise, agreement by an village with a opinion majority issue in the case. The telephone company for construction and creates an issue of fact for the defendant. telephone along maintenance of lines defendant, pre- Neither the answer of dedicated acceptance street awas clear order, statement, opening defendant’s public dedicated street Village use. nor the is- evidence raised the Booth, Maxwell v. 161 Neb. 73 N. acceptance sue of defendant’s or оwner- W.2d 177 See also Graff v. Cas ship. Acceptance, prerequisite as a to lia- par, Wyo. 486, (1955), bility, was first mentioned defendant A.L.R.2d and the annotation for au casually in its motion for a directed ver- sewers, thorized construction of water denied, dict. When motion was it re- pipes acceptance or the like as an of dedi quested an instruction limited to dedication premises. cated of the area between 13th and 14th Streets Public length use for a considerable on Corbin as a dedicated “street.” This time, Noe, Galewski v. 266 Wis. 62 N. request was denied. Under these circum- (1954), assumption control; W.2d 703 stances, preserved this issue was not County, Adams v. Richmond 193 Ga. Casualty review. v. Citizens Johnson S.E.2d assumption of domin Y., Compаny of N. ion; Galveston, Ry. H A& S Co. v. objection Defendant’s has no Pass, Eagle (Tex.Civ. S.W. 268 merit. App.1923), premises over acceptance Issue, constitutes (b) Acceptance thereof. Even were an if Accepted the Dedicated acting manager Defendant The defendant’s town Way as a Law. Matter engineer admitted that the defendant had exercised over the area for years, general For control rule in New public safety. admission, benefit of acceptance Mexico has been that of an of- testimony, and other established that may fered dedication of land be established defendant exercised exclusive dominion by proof taking pos- of affirmative aсts of way by exercising over the dedicated by con- public session authorities. Lovelace v. drainage, waters, erosion, trol 50, over flood Hightower, pedestrian and vehicular traffic for the undisputed (1946). The evidence establish- purpose providing public safety. took es that defendant affirmative acts possession way. The de- of the dedicated accept If the defendant did not the dedi- I am fendant admitted it as shown way, belong cated does it still to the heirs is, concerned, majority whether not as the of Frazer dedicated it in 1879? who parties agree ‘possession’ de- “both ” pends ‘acceptance.’ as “Possession” are the Instructions Considered (c)When “acceptance.” stated means Together, There was no Error. opinion majority does not set forth The gave The trial court also 17.2 U.J.I. evidence, undisputed but all of the which reads as follows: upon which to show af- stated sufficient The law of this in case contained possession. firmative acts of your duty these instructions and it is to Morris, City of Mt. 32 follow them. You consider these In Allen v. must whole, picking Mich.App. 633, 120 as a 189 instructions not out N.W.2d 286 highest parts instruction thereof and dis- such

one statutes court Mis- Tilton, 696, souri. regarding others. Romero v. 78 437 N.M. (Ct.App.1967). cautionary The This is instruction. Supreme on the issues In 1873 and

jury was instructed cases, 2 wrongful and 3. Missouri held that in the case instructions Nos. death They considering including child, the death were cautioned that оf a funeral ex pick pense out 14, they one of No. should the most and obvious injuries consider parts necessary resulting of this instruction without from death. Brockschmidt, ing (1873); instructions Nos. 2 3. See Cuci Owen v. 54 and Mo. 285 Louis, Company, 42 Rains v. St. nella Western Biscuit Cal. Iron Mountain and Railway Co., (1879). 2d 265 P.2d California Southern 71 Mo. 164 Instructions, Edition, Jury Civil, prevails still Fifth This rule In Hild Missouri. Key, (Mo.App. struction No. 1.01. reth v. 341 S.W.2d 601 1960). ap This case has been cited with ordinary reading An of the instructions proval grounds, in New Mexico on other “possessor shows that of the dedicated Manlove, State v. 441 P.2d way” was not an issue in the case. The phrase was used in instruction No. sole- 22-20-3, ly stating supra, a convenient Section provides method of is- that the death, liability. nothing jury, giving may damages sue There in the рhrase to show in pecuniary record that the mentioned take “into consideration the jury injuries.” [Emphasis affected the verdict added.] Owen, way. “necessary” word supra, used in “pecuniary” as used in the above statute There (d) Evidence to Sufficient synonymous. are McGowan v. The St. Sustain the Law the Instruction. Co., Louis Ore Steel 109 Mo. Defendant’s objection second involves Stang at S.W. 199 See the issue of evidence to sufficient sustain Corporation, Hertz the law of the careful instruction. A re- (Ct.App.1969), aff. 81 N.M. 467 P. view of the record shows substantial evi- 2d 14 giving dence warrant instruc- are entitled fu- to recover tion. expenses neral burial under New The defendant is not entitled a new Wrongful Mexico Death Statute. trial. Majority Opinion Deter- C. The Fails are B. Entitled to Recover Fu- Plaintiffs mine Errors Claimed Defendant neral and Expenses. Burial may Arise on a New Trial. A claim for funeral expenses and burial (1) The Oived Decedents Defendant raises a new in New Mexico. Duty Ordinary Care and Breached The New wrongful Mexico death stat Duty. that ute, 22-20-4, N.M.S.A.1953, 22-20-1 to §§ Defendant claimed there was evi- adopted from the State of Missouri in dence duty of breach of owing de- adoption 1882. The of these in statutes decedents, fendant that “the crux of prior cluded their construction granting this and the lawsuit of courts of Montoya, Missouri. White v. n. o. v.” was the error of the trial court in N.M. 126 P.2d Although giving instructions In- Nos. 14 and 15. binding, not the Missouri construction ‍‌​​​​​‌​‌‌​​‌​‌​‌​‌​‌​​‌​‌‌‌​‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌‍of Nos. 14 structions were not erro- pеrsuasive. its statutes Hunter-Hayes neous. Co., Elevator Co. v. Inn Petroleum Club authority 465 (1966). legis Our No has been dis- cited which presumed lature is duty municipal- adopted to have cussed breach of where the prior construction interpretation ity possession of has control of a dedicat- However, way. a municipality ed is liable ant knew or should have known of such negligence operation for in the and mainte risk. system.

nance of its sewer Pfleiderer v. Third. That the children who were Albuquerque, of 75 N.M. 402 P. killed, youth, because of their did not Lovington, 2d 44 White discover or realize the risk involved in 435 P.2d 1010 (Ct.App.1967). intermeddling coming or within area theory I see no difference in dangerous. made duty ordinary between the to exercise care expense Fourth. That or incon- operation in the and maintenance aof sew- remedying venience to the defendant system operation er and the and mainte- the condition of the ditch embankment way nance a dedicated which a munici- guarding against or danger would pality drainage system uses as a for ero- slight comparison have been to the sion municipality and flood waters. The risk harm to the children. has systems control over both for the bene- Fifth. That the condition the ditch fit of safety the health and the members proximate embankment was a cause public. of the theory is reinforced the deaths. Supreme applied fact that You plaintiffs cannot find for the theory municipal liability the same this claim of attractive nuisance unless negligence in parks the maintenance of you find propositions that all of these negligence that existed for in the mainte- proved. have been you If find all Murphy City nance of streets. of Carls- propositions proved, these have been bad, your plaintiffs. verdict should be for the duty The defendant had a to exercise or- [Emphasis added.] dinary opera- care in the maintenance and objected The defendant way tion of to his over which “for the reason that the evidence possession. had control and does not The record support and there are no facts or shows substantial evidence evidence that there was a justify require duty. breach of that submission of

the issue of attractive nuisance.” (2) Instruction No. 15 Erroneotis. support evidence was sufficient However, the instruction. on retrial other Instruction No. was discussed objections may be raised. Instruction No. 15 reads as follows: The above instruction is the same as U. Another of the claims of the 10.4, Children,” “Trespassing entitled J.I. is that the defendant allowed the ditch except (a) “trespass” where the word and its embankments to remain in a dan- 10.4, is used in this instruction used U.J.I. gerous condition which was an attractive the word “venture.” The of tres-

nuisance to children. In order to re- record, pass was not mentioned in the (b) plaintiff cover under claim eaсh has 10.4 space has a blank which calls U.J.I. proving the burden of each fol- for the insertion of “the structure or other lowing propositions: artificial condition in question.” place First. That the of the ditch above em- instruction inserted “ditch embank- complained bankment condition ment of was condition.” upon one which the defendant knew Defendant raised these matters should have known that children were first time in its answer brief. The substi- likely to venture. tution of words was not error because no objection Second. The condition of the ditch was made that the instruction embankment was one was a which involved an modified or deviated variation. objection injury unreasonable risk of to children necеssary to alert ditch, venturing into the and the defend- court to Tapia these matters. Pan- v. 288 Company, type applica-

handle Erectors 78 N.M. of condition Steel involved. Its 86, depends objection tion (1967). particular 428 P.2d 625 An will on the facts probably Lyster, made on retrial. case. Martinez be v. Louis General Inc., Contractor, 639, 75 N.M. 409 P.2d 493 (a) Children as Venturers (1965). applies I believe the doctrine It has been determined in this case the “ditch embankment condition.” licensees, invitees, whether decedents were only argued is: Does the They trespassers. were called “ventur- apply doctrine of attractive nuisance to a begun abolishing ers.” toward A trend has cave-in on ‍‌​​​​​‌​‌‌​​‌​‌​‌​‌​‌​​‌​‌‌‌​‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌‍the ditch embankment? Of “invitee,” “li- arbitrary сlassification of it course does. “trespasser” assessing the censee” unnecessary It is to restate the elements occupier of land. Rowland of of the doctrine of attractive nuisance. 97, 108, Cal.Rptr. Christian, v. 70 69 Cal.2d They will be found in Latimer v. of Grice, Kenny (1968); 443 P.2d 561 v. 171 Clovis, 610, (Ct. N.M. 83 495 P.2d 788 185, (1970); Annot. 35 Colo. 465 P.2d 401 App.1972); Saul v. Roman Catholic Summary (1971), A.L.R.3d 230 and Com- Arch, Fe, 160, Church of N.M. of Santa 75 adopted ment. This rule be in New should Eden, 402 Klaus P.2d 48 v. 70 N. Mexico, at least as far as children are con- 371, (1962); Martinez M. v. 129 give cerned, Supreme and the Court should Co., Contracting C. R. Davis serious to this rule for future consideration 389 P.2d 597 application. Chine, Snyder In 2d v. Utah (3) Guilty The Decedents were Not of the court said: Assump- Contributory Negligence and gone, for the rule is the reason tion as a

When Risk Matter Lаw. Appropos it. the rule should vanish with Defendant claims the decedents the statement of Holmes: Justice contributorily negligent and assumed revolting rea- “It is to have no better risk The trial court as matter of law. so laid legal son for a rule than that was on these issues. instructed Henry It down in the time IV. assumption risk was The defense of upon grounds revolting if the still more Smith, supra. abolished in v. Williamson have vanished which it was laid down prospective from This conclusion was since, persists long simply and the rule Elliot, Valley date. Taos Ski v. past.” from blind imitation of present (1972). The reasons, Supreme For similar September 22 case was tried assumption of abolished the doctrine of assumption and the defense of of risk was Smith, risk. Williamsоn v. Nevertheless, available to then defendant. Stang also See agreed plaintiffs and defendant that con- Corporation, supra. Hertz negligence assumption tributory of risk now, If not when? same, argue were one and the and did not assumption risk. defense of (b) Embankment Condition Ditch adage, supported by respectable An old review have not deter- Our courts of authority, applies here: of attractive mined whether doctrine sufficiently to include nuisance is broad eyewitnesses, there are Where Is it an the ditch embankment condition. speaks love of life as a silent witness “artificial condition” ? The risk, assumption against against specific jury without was submitted to the contributory against negligenсe, suicide. objection it became insertion and to this Voge, N. Lindgren Minn. Supreme Court the law this case. The Binghampton W.2d Arizona attractive placed has never the doctrine Dickson, Copper 195 P. Ariz. Co. v. rigid category on the basis nuisance in a

289 Morrell, wrongful (1921); 538 Under the statute, Silurian Oil Co. v. 71 22- death § 20-3, supra, Okla. 176P. 964 contributory negligence person ultimately who will receive the establishing The burden of affirmative recovery benefit of a right bars the of re- defenses, law, wrongful as a matter of in a covery to the extent his share in re death action rests on the defendant. Mar- covery. Baca, Baca v. 71 N.M. 379 Contracting tinez Co., v. C. R. Davis su- (1963); P.2d 765 Sanchez v. Barron J. pra. Rice, Inc., 77 N.M. Defendant contends that all decedеnts ; (1967) Estates, Inc., Bolen v. Rio Rancho age capacity were of sufficient and mental 81 N.M. recognize to look after themselves and to parents who proximity resided in appreciate places danger, and and were arroyo, Altos knew Pinos its location contributorily negligent under the evidence character. Their were residences within disagree. as a matter of I law. Sr., Monje, two blocks of the cave-in site. area, lifelong was a resident of the ex- The evidence relied on defendant does perienced miner, underground ac- well not, itself, contributory negli- establish quainted dangers. with cave-in Pie was gence aas matter of law. test The correct arroyo familiar with the and had cautioned by which the conduct of a child is to be boys his play three not to therein. The determining contributory in neg- measured parents Thanksgiving were at home on ligence is set forth in Martinez R. v. C. Day occurred, when the accident but none Co., Contracting Davis It points out supervise them undertook or check Lowdermilk, that Mellas v. the whereabouts and re- activities of their defendant, P.2d 399 relied on spective children until late the after- longer controlling on the issue of due noon. care of a minor. See also Archuleta v. Jacobs, (1939); The uncontradicted par- evidence of the Sisters, McMullen v. Ursuline Order of they also ents shows did not know of the Saul v. existence of cave in the bank of the Arch, Roman Catholic Church of of Santa arroyo. Fe, supra. parents Defendant contends the were contributorily negligent failing super- appellate

Trial and courts should not respective vise their judge having children and in young the conduct of children to be them law, unattended and contributorily unaccounted for. No negligent as a matter of authority or, support cited to this conten- to have assumed the risk tion. It does experts as not merit our a matter of law. are consideration. We not adopt We should the rule stated behavioral conduct of children of seven to Kitsap Bremerton County years age. Dis- twelve Sewer the find- trict, Wash.2d contributory er fact. of the The issuе of negligence assumption of risk were sup- Where no authorities are cited in jury, submitted to because the port of proposition, the court is re- guilty decedents were not either as quired authorities, may to search out but matter of law. counsel, assume diligent after search, has found none. Courts ordinar- (4) Decedents’ Parents were not Guilty of ily give will not consideration to er- such Contributory Negligence a Matter apparent rors unless it is without further Lazv. research assignments of error presented are well taken. parents Defendant that the claims chargeable, decedents as a matter of For Bolen, supra, the reasons stated in law, contributory negligence. with parents cоntributory guilty were not 502 P.2d 315 negligence matter of law because nothing par- there is to indicate that Mexico, Plaintiff-Appellee, STATE of New condoned, any way, acquiesced ents “in v. entering consented to their sons cave. BOYD, Defendant-Appellant. Elmer Rheford contributory There is no evidence to infer No. 901. negligence part parents on Appeals of New Mexico. connection with ‘the suffocation of their Aug. 18, 1972. sons’.” Rehearing Sept. 27, Denied 1972. D. The Court Failed Trial to Follow Rules Certiorari Denied Oct. 1972. on Instructions. 21-1-1(51) (b), Section N.M.S.A. 1953

(Repl. 4) provides part: Vol. jury try

After a has been sworn to opening but before statements presentation any testimony applicable portions court must read the jury. 1.2 to [Emphasis U.J.I. added.] 1.2 сontains ten “admonitions to the U.J.I. jury on conduct.” duty This rule not fall does within the parties request reading portions mandatory 1.2. It is on U.J.I. the trial court. If the court does not do

so, explain why applicable it should

portions were not read. 21—1— Section

1(51) (c). See Clinard v. Southern Pacific

Company, 475 P.2d 321 Seidenberg, Jewell ; Chapin Rogers,

This is not the occasion to write an es- say on the because this matter was But, appeal. not raised on as Chief ‍‌​​​​​‌​‌‌​​‌​‌​‌​‌​‌​​‌​‌‌‌​‌‌​‌​​​‌‌‌‌‌‌‌​​‌‌‌‍Justice Compton Jewell, wrote in his dissent in su- pra: Chipping away begun has now U.J.I. camping

and will be at the door of the being courts what is done. If retried, this case is the trial court should, sworn, after has been slowly carefully applicable read the

portions 1.2, may and it hand to U.J.I. jurors copy thereof. The trial court also modified 10.4 U.J.I. as mentioned Whenever this is done, helpful appeal would be if an explanation given.

Case Details

Case Name: Williams Ex Rel. Estate of Martinez v. Town of Silver City

Court Name: New Mexico Court of Appeals

Date Published: Sep 22, 1972

Citation: 502 P.2d 304

Docket Number: 885

Court Abbreviation: N.M. Ct. App.