CUPPS V. SOUTHWESTERN PUB. SERV. CO., 1978-NMCA-039,
91 N.M. 639, 578 P.2d 340 (Ct. App. 1978)
Raymond V. CUPPS, Administrator of the
Estate of David Lynn
Cupps, Deceased, and Raymond V. Cupps, as Personal
Representative of the Estate of David Lynn
Cupps, Deceased, Plaintiff-Appellant,
vs.
SOUTHWESTERN PUBLIC SERVICE COMPANY, a corporation, and
Graves Brothers, Inc., a New Mexico Corporation,
Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
1978-NMCA-039, 91 N.M. 639, 578 P.2d 340
Petition for Writ of Certiorari Denied
May 9, 1978
Robert I. Waldman, Roswell, for
plaintiff-appellant.
Harold L. Hensley, Jr., Hinkle Cox,
Eaton, Coffield & Hensley, Roswell, and Mac W. Hancock, III, Gibson,
Ochaner, Adkins, Harlan & Hankins, Amarillo, Tex., for Southwestern Public
Service Co.
William W. Bivins, Bivins, Weinbrenner
& Reagan, Las Cruces, for Graves Bros., Inc.
LOPEZ, J., wrote the opinion. SUTIN and
HERNANDEZ, JJ., concur.
{1} The plaintiff-appellant
filed a wrongful death action against the defendant-appellee, Southwestern
Public Service Company (Southwestern) and the defendant-appellee Graves
Brothers, Inc., (Graves) to recover damages for the death of his son. Summary
judgment was granted by the trial court in favor of the defendants-appellees.
We affirm.
{2} The appellant presents
three points on appeal: (1) material issues exist relative to the negligence of
the defendant, Southwestern Public Service Company, due to the low clearance of
its high voltage electric wires; (2) the defendant Graves, as a land owner,
owed a duty to the decedent to provide a safe place to work and this duty was
breached; and (3) decedent was not contributorily negligent as a matter of law;
rather there are issues of material fact relating to contributory negligence.
{3} The record reveals the
following pertinent facts: Appellant's son, David L. Cupps had finished loading
his employer's truck with hay purchased by his employer from defendant Graves.
While the decedent was covering the hay with a tarpaulin, he came in contact
with wires carrying 7,200 volts of electricity, which contact resulted in his
death by electrocution. The electric wires were owned, operated and maintained by
the defendant, Southwestern. At the point where decedent came in contact with
the power line, the clearance of the wires was 16 feet 9 inches from the
ground, and passed over an entrance to the garage and barn on defendant Graves'
farm. The decedent was warned numerous times by four separate persons about the
existence of the electric lines in question and the danger posed to one coming
in close proximity with them. Furthermore, the decedent had been instructed
specifically to back his tractor trailer away from those lines in order that
the hay could be covered without coming in contact with the lines. Further,
although the decedent had plenty of room to park his truck without being close
to the lines, the decedent himself parked the truck before commencing to put
the tarp on the trailer, leaving a portion of the cab under the wires. When the
decedent so parked the lines were clearly visible to him. The decedent should
have understood the warnings about the lines and the location of the lines when
he came in contact with them.
The contributory negligence of the decedent.
{4} Appellant's Point III is
dispositive of this appeal. The appellant argues that the court erred in
concluding that the decedent was contributorily negligent as a matter of law
and that such negligence bars recovery in this case. This being a review of a
summary judgment, we are guided by the case of
Goodman v. Brock, 83 N.M.
789,
498 P.2d 676 (1972). The Supreme Court stated in
Goodman v. Brock,
supra:
Unquestionably the burden was on defendants to show an
absence of a genuine issue of fact, or that they were entitled as a matter of
law for some other reason to {*641} a
summary judgment in their favor. [Citations omitted.] However, once defendants
had made a prima facie showing that they were entitled to summary judgment, the
burden was on plaintiff to show that there was a genuine factual issue and that
defendants were not entitled as a matter of law to summary judgment.
{5} After the defendants made
their prima facie showing, the plaintiff failed to come forward to show there
was an issue of material fact relating to contributory negligence. The case of
Wood
v. Southwestern Public Service Company, 80 N.M. 164,
452 P.2d 692 (Ct.
App.1969) is applicable to the instant case in determining whether decedent was
contributorily negligent as a matter of law. The court in
Wood said in
pertinent part as follows:
Decedent's conduct is judged by the standard of what a
reasonably prudent person would have done under the circumstances. When he
raised the metal pole toward the line, he was required to anticipate what a
reasonably prudent person would have anticipated. A reasonably prudent person
would have anticipated the danger of making contact with the line.
"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. * *
*"
{6} We apply
Wood,
supra, to the cause at bar and come to one conclusion: decedent knew the lines
were low and the lines were obvious to him; decedent came in contact with the
electric wires after he had been warned.
{7} Decedent acted in a
manner in which a reasonably prudent person would not have acted. Therefore, we
conclude that the trial court did not err in determining that there was no
issue of material fact. Decedent was contributorily negligent as a matter of
law thus barring recovery of this case.
{8} Since the issue of
contributory negligence is dispositive of this appeal, we need not discuss
appellant's point I and II. Summary judgment of the trial court is affirmed.
SUTIN and HERNANDEZ, JJ., concur.