Martinez v. CR Davis Contracting Company , 73 N.M. 474 ( 1964 )

COMPTON, Chief Justice.

This is a tort action for the wrongful death of the plaintiff’s intestate, a child of the age of 14 years and 5 months, allegedly resulting from the defendant’s negligence. Issue was joined, and various affirmative defenses were pleaded, among which was the defense of contributory negligence of the decedent. The cause was tried to a jury and from an adverse judgment on the verdict, the defendant has appealed.

The appellant presents its argument under these points, and we quote: (a) “The court erred in failing to direct a verdict for the defendant for the reason that plaintiff failed to make out a case of negligence against the defendant” and (b) “the court erred in failing to direct a verdict for the defendant, for the evidence showed contributory negligence on the part of the decedent as a matter of law.”

As we understand appellant’s points, they simply challenge the sufficiency of the evidence to sustain the verdict. A recital of the evidence rather extensively is essential in order to understand the points argued.

Appellant had entered into a contract with the City of Albuquerque by which appellant undertook to construct a sewer line for the city, within the city. In the course of the construction it became necessary to excavate a manhole some 12 by 20 feet, in the 1400 block of John Street, Southeast, referred to as manhole “9”. The crucial date is July 10, 1961, which was on a Monday. Previously it had been raining and the excavation had become partially filled with water, and on the latter date it had filled forming a pond to a depth of approximately 12 feet.

About 5:00 P.M. on July 10, Ernest P. Martinez, Jr., the decedent, and another boy entered the excavation. On the surface of the pond there was floating an object which appeared to be a raft. Later it developed that the object was a cement form some 5 by 6 feet consisting of boards nailed together. Both boys boarded this contraption and, while attempting to cross the pond, the boards tipped and young Martinez either jumped or fell off and was drowned.

The initial question is whether appellant, in permitting the excavation to go unguarded and in failing to warn the decedent of the existing danger, exercised due care for his safety. The jury concluded that he did not, and we think the evidence amply supports its verdict. In the area there were 6 other similar excavations containing water. Barricades had been placed generally around the area, but not around the individual manhole excavations. Admittedly, the president of appellant company knew that the area in question was densely populated with children and that during the months of April, May and June, and the early days of July, the company had difficulty with children playing around the excavations. He testified that none of the excavations were closer together than 200 feet and that only one watchman was on duty to guard the excavations, the equipment, and the project generally. He also testified that this watchman was on duty only from 4:00 p. m. to midnight. Appellant’s foreman testified that it was impossible for one watchman to guard all the excavations against the children of the area. And there is evidence that it had rained on Friday, July 7, and children were seen that day playing in the excavation in which the decedent was drowned. Thus, we think the jury was warranted in finding that appellant was negligent in failing to exercise due care for the safety of the decedent.

Appellant relies upon our own case, Mellas v. Lowdermilk, 58 N.M. 363, 271 P.2d 399. The case is distinguishable on the facts. In that case the evidence affirmatively established that Lowdermilk was free of negligence in maintaining the pond in which young Mellas was drowned.

The point is made that the decedent was negligent as a matter of law and that his negligence contributed as a proximate cause of the drowning. Appellant again relies on Mellas v. Lowdermilk, supra. We repeat, the case is distinguishable on the facts. However, in addition we would point out that insofar as the dicta in that case states a rule of due care of a minor differently from what is here held, the same is not controlling.

The question posed by the evidence is, can reasonable minds differ as to whether the child because of his youth discovered the condition or realized the risk involved in intermeddling in it or in coming within the area made dangerous by it? If reasonable minds can differ the case should he affirmed. If not, it should be reversed. In the instant case we think reasonable minds can well differ. As to what is negligence on the part of a child 14 years of age see Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507; Selby v. Tolbert, 56 N.M. 718, 249 P.2d 498; Jacobs v. H. J. Koehler Sporting Goods Co., 208 N.Y. 416, 102 N.E. 519, L.R.A.1917F 7 and the note in 1917F 10, 22 (note 33), and 109. Also see 107 A.L.R. 4, and 174 A.L.R. 1081. See also Article “Trespassing Children” by Dean Prosser, 47 Cal.L.R., pages 461, 462. We see no reason for a different rule where ponds or lakes are involved than where other known dangerous instrumentalities cause the injury. We conclude that the question of the minor’s negligence presents an issue of fact, which issue was presented to the jury under proper instructions. Appellant had the burden of establishing affirmatively the defense of contributory negligence, and we may say there is evidence from which the jury could have so found, but the jury having found otherwise, its verdict should not be disturbed.

The argument is made that the decedent’s age, experience, and intellectual background varies the standard by which the conduct of the decedent should be measured. We are not impressed with this argument. The correct test by which the conduct of a child is to be measured in determining contributory negligence is whether the child exercised that degree of care ordinarily exercised by children of like age, capacity, discretion, knowledge and experience under the same or similar circumstances for his own protection. The court so instructed the jury.

The judgment should be affirmed, and it is so ordered.

CHAVEZ and MOISE JJ., concur. CARMODY and NOBLE, JJ., dissenting.