STEPHENS V. DULANEY, 1966-NMSC-065, 76
N.M. 181, 413 P.2d 217 (S. Ct. 1966)
GLADYS STEPHENS, Plaintiff-Appellant,
vs.
J. L. DULANEY, Defendant-Appellee
SUPREME COURT OF NEW MEXICO
1966-NMSC-065, 76 N.M. 181, 413 P.2d 217
Appeal from the District Court of Lea
County, Nash, Judge
WILLIAM J. HECK, Hobbs, New Mexico,
Attorney for Appellant.
NEAL and MATKINS, Carlsbad, New Mexico,
Attorneys for Appellee.
CHAVEZ, Justice, wrote the opinion.
M. E. NOBLE, J., IRWIN S. MOISE, J.
{1} This is an appeal by
plaintiff-appellant from a judgment in favor of defendant-appellee in
accordance with a jury verdict. The appeal is based solely upon the alleged error
of the trial judge in submitting an instruction on assumption of risk to the
jury.
{2} Plaintiff alleged that on
or about November 3, 1962, while she was smoking a cigarette near defendant's
1960 GMC pickup truck, its gasoline tank exploded and caught fire, resulting in
injuries to plaintiff. Plaintiff also alleged that defendant was negligent in
that he knew, or should have known, of a defect in the gasoline tank.
{3} Defendant answered
denying the allegations of the complaint and set up affirmative defenses of
negligence solely on the part of plaintiff, contributory negligence and
assumption of risk.
{4} Evidence at the trial
shows that plaintiff and defendant were on a hunting trip to northern New
Mexico at the time of the accident. They were traveling in a truck owned by
defendant. The truck was a 1960 pickup type made by General Motors. On such a
truck the gasoline tank is located behind the seat and extends practically the
width of the cab of the truck. Plaintiff knew that the gasoline filler spout,
where the gasoline is put into the gas tank, is right by the door of the pickup
on the driver's side about "two feet or a foot or so" from the top of
the window. The gas gauge sits down into the gasoline tank, midway between each
side, and is attached to the tank by screws or bolts. At times the testimony is
confusing because the mechanic, who worked on the car, referred to the gas
gauge where it is attached to the gasoline tank, while defendant indicates that
his reference to the gas gauge involves, at times, the electrical indicator
located on the dashboard. However, it appears that defendant had worked on the
gauge attached to the tank, but he claims that he was not aware of any defect
in the tank at the time of the accident. Defendant acknowledged it was his
opinion that leaking gas fumes had caused the explosion.
{5} Both plaintiff and
defendant had been smoking in the truck as the parties were on their way from
Lovington to Springer, New Mexico, the location of the accident. No trouble had
been encountered after a stop for gasoline in Portales or Clovis, New Mexico.
{6} At about 3:00 a.m. the
parties stopped at a gasoline station in Springer and filled
{*183}
the tank with gasoline. Plaintiff then drove the truck to a nearby cafe,
some 50 to 75 feet from the gas station. Plaintiff left the truck to go into
the cafe for a cup of coffee and defendant remained in the truck. At
plaintiff's request, defendant locked both doors from the inside. When
plaintiff returned to the truck about 20 minutes later, defendant was asleep
and plaintiff asked defendant to let her in as she was unable to unlock the
door. Defendant jokingly refused to open the door and plaintiff and defendant
carried on a conversation through the window on the driver's side, which window
was open about an inch and one-half. At this point, while standing outside of
the pickup very close to the driver's side, plaintiff removed a package of
cigarettes from her pocket and a box of matches. She struck a match to light a
cigarette. While she was holding the match and talking to defendant, there was
an explosion which blew out both doors of the truck and threw plaintiff over a
small automobile, injuring her. The explosion occurred from 20 to 30 minutes
after the gas tank had been filled.
{7} The truck was taken to a
garage where a mechanic examined it the following morning. He found two screws
missing from the gas gauge, took the remaining screws off, put in a new gasket
and replaced the gauge. The mechanic could not say whether the gas cap on the gas
tank was missing, but he was able to say that, if the vehicle were moving and
the bolts on the gas gauge were missing, gas and gas fumes could escape from
the tank.
{8} Evidence also showed that
plaintiff was 38 years old and was familiar with motor vehicles, having driven
them as a livelihood in the operation of a taxicab service; that she was
familiar with the gas intake location on defendant's truck; that defendant told
her that the gas gauge on the dashboard was not working properly and that he had
worked on it, although defendant did not tell her exactly what he had done.
Plaintiff testified that she was unable to smell gasoline fumes at the time of
the accident, as she can never remember having a sense of smell.
{9} Plaintiff contends that
there was no evidence to warrant the submission of an instruction on assumption
of risk. The trial court's instruction No. 11 reads:
"You are instructed that one of the defenses asserted by
the Defendant against the Plaintiff is that at the time and place of the
accident the Plaintiff voluntarily assumed the risk of lighting the match at
the time and place of the explosion. In this case, if you find from a
preponderance of evidence that the Plaintiff, Gladys Stephens, knew or by the
exercise of ordinary care should have known of the danger that existed {*184} in lighting the match then she assumed
the risk and cannot recover."
{10} In our opinion, what was
said in Reed v. Styron,
69 N.M. 262,
365 P.2d 912, is decisive and supports
plaintiff's position. We said in Reed v. Styron, supra, that plaintiff was free
to assume that stairs, in general use, could be walked on safely. The defect in
the stairs could only have been discovered by close inspection. It cannot be
said that plaintiff in that case assumed the risk of stair treads breaking off
when stepped on by someone.
{11} Likewise, plaintiff in
the instant case was not shown to be aware of any defect in the truck. It is
common knowledge that people smoke and light matches around motor vehicles. It
was error to instruct on assumption of risk because, without any knowledge on
the part of plaintiff, she could not have assumed the risk.
{12} The cause is reversed
and remanded to the trial court with direction to set aside the judgment
heretofore entered, to reinstate the case on the trial docket, to grant a new
trial and to proceed in a manner consistent with this opinion.
M. E. NOBLE, J., IRWIN S. MOISE, J.