{ "id": 1588631, "name": "Virgil C. MARTINEZ, Plaintiff-Appellee, v. The ZIA COMPANY and United States Fidelity and Guaranty Company, Defendants-Appellants", "name_abbreviation": "Martinez v. Zia Co.", "decision_date": "1983-05-17", "docket_number": "No. 6093", "first_page": "8", "last_page": "12", "citations": [ { "type": "official", "cite": "100 N.M. 8" }, { "type": "parallel", "cite": "664 P.2d 1021" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "68 N.M. 97", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2719414 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/68/0097-01" ] }, { "cite": "87 N.M. 106", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2834157 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/87/0106-01" ] }, { "cite": "53 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580724 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/53/0127-01" ] }, { "cite": "315 P.2d 217", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2775732, 2776229 ], "opinion_index": 0, "case_paths": [ "/nm/63/0148-01", "/nm/63/0147-01" ] }, { "cite": "63 N.M. 148", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2775732 ], "opinion_index": 0, "case_paths": [ "/nm/63/0148-01" ] }, { "cite": "70 N.M. 40", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2853025 ], "weight": 4, "year": 1962, "pin_cites": [ { "page": "43-44" } ], "opinion_index": 0, "case_paths": [ "/nm/70/0040-01" ] }, { "cite": "35 N.M. 87", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557996 ], "weight": 2, "year": 1930, "opinion_index": 0, "case_paths": [ "/nm/35/0087-01" ] }, { "cite": "52 N.M. 402", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579494 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/52/0402-01" ] }, { "cite": "57 N.M. 315", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841783 ], "weight": 4, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0315-01" ] }, { "cite": "66 N.M. 165", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2846385 ], "weight": 4, "year": 1959, "pin_cites": [ { "page": "169" }, { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nm/66/0165-01" ] }, { "cite": "85 N.M. 100", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2773542 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0100-01" ] }, { "cite": "82 N.M. 113", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5330442 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/82/0113-01" ] }, { "cite": "65 N.M. 355", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2844523 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/65/0355-01" ] } ], "analysis": { "cardinality": 618, "char_count": 11364, "ocr_confidence": 0.807, "pagerank": { "raw": 5.53376690388667e-08, "percentile": 0.34898598335269737 }, "sha256": "fc9bf00c7d1597175d785e4e802815ac761e04632320c471573e4fad6ce28e6d", "simhash": "1:f4efe5251a4c9ef0", "word_count": 1927 }, "last_updated": "2023-07-14T21:45:38.267108+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and NEAL, JJ., concur." ], "parties": [ "Virgil C. MARTINEZ, Plaintiff-Appellee, v. The ZIA COMPANY and United States Fidelity and Guaranty Company, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nIn this worker\u2019s compensation case, the trial court increased the compensation award by ten percent on the basis that the injury \u201cresults from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the workman * * NMSA 1978, \u00a7 52 \u2014 1\u201410(B). Defendants appeal. We discuss: (1) pleading; (2) safety device; (3) general use; and (4) dispose of two motions.\nPleading\nThe claim for compensation alleged:\nPlaintiff is entitled to an increase of ten (10%) percent of her [sic] ordinary award herein by reason of the Defendant employers [sic] failure to supply reasonable safety devices in general use for the use and protection of workers within the circumstances of this case.\nNMSA 1978, \u00a7 52-l-10(E) provides:\nNo employee shall file a claim for increased compensation * * * because of the lack of a safety device * * * unless the claim identifies the specific safety device which it is claimed was not furnished by the employer.\nDefendants assert that the safety device contention should be dismissed for failure to state a claim upon which relief can be granted. Their argument is twofold. First, they allege the claim was legally deficient and, thus, could not support the award. Second, they contend the trial court erred in refusing defendants\u2019 request ed finding that the claim was legally deficient. Both arguments are based on the deficient pleading; the complaint did not identify the specific safety device.\nWe agree that the safety device allegation in the complaint failed to comply with \u00a7 52-l-10(E), and was legally deficient. Defendants did not move to dismiss for failure to state a claim. See NMSA 1978, Civ.P.R. 12(b)(6) (Repl.Pamp.1980). Defendants assert their failure to challenge the legal sufficiency of the pleading prior to trial is of no consequence because the failure to state a claim can be raised at any time. See Jernigan v. Clark and Day Exploration Company, 65 N.M. 355, 337 P.2d 614 (1959). We assume, but do not decide, that the question of failure to state a claim was properly before the court by defendants\u2019 requested finding.\nBecause the safety device claim was legally deficient, we also assume that no safety device issue was raised by the pleadings and that if defendants had objected at trial to testimony concerning the safety device issue, the trial court could properly have sustained the objection. However, there was no objection.\nNMSA 1978, Civ.P.R. 15(b) (Repl.Pamp. 1980), states:\nWhen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all\u2019 respects as if they had.been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.\nWhere issues are tried by implied consent of the parties, they will be treated as if they had been raised in the pleadings. Terry v. Terry, 82 N.M. 113, 476 P.2d 772 (1970); White v. Wayne A. Lowdermilk, Inc., 85 N.M. 100, 509 P.2d 575 (Ct.App.1973).\nDefendants assert that use of the Rules of Civil Procedure is inappropriate. They recognize that NMSA 1978, Civ.P.R. 8(e) (Repl.Pamp.1980) states that technical forms of pleading are not required, but point out that Civ.P.R. 8(e) is not applicable because of NMSA 1978, \u00a7 52-1-34. That statute provides:\nThe Rules of Civil Procedure * * * shall apply to all claims * * * under the Workmen\u2019s Compensation Act except where provisions of the Workmen\u2019s Compensation Act directly conflict with these rules, in which case the provisions of the Workmen\u2019s Compensation Act shall govern.\nWe agree that the pleading requirement of \u00a7 52-l-10(E) governs over Civ.P.R. 8(e), but that is a non-issue.\nWe have proceeded on the basis that the safety device claim was not an issue raised by the pleadings. The safety device issue was before the trial court because that issue was tried with implied consent. Defendants do not claim that any provision of the compensation statute directly conflicts with Civ.P.R. 15(b). Under \u00a7 52-1-34, Civ.P.R. 15(b) was applicable.\nThe safety device claim is not to be dismissed on the basis of a pleading defect, because it was tried by consent of the parties.\nSafety Device\nThe trial court\u2019s unchallenged finding is that the accident occurred \u201cwhen plaintiff, while operating a Bobcat, was backfilling a foundation and the machine hit some solid concrete causing an injury to plaintiff\u2019s back.\u201d The testimony indicates plaintiff was backing the machine when the accident occurred.\nThe trial court found:\nAt the time of the accident, the Bobcat that plaintiff was using was not equipped with a rear view mirror thus preventing plaintiff from seeing behind him, the area which he was working. The defendant-employer had other Bobcats with such mirrors.\nSubstantial evidence supports the finding. Plaintiff testified:\nQ Was there any way that you could have seen what was behind you before you hit it?\nA No[t], really, because your back end of the seat is way up here, and the window is way up.\nQ So, there was no way that you could have seen what you hit?\nA Unless I had a mirror. If I had a mirror on the side or at least on the top.\nQ This machine didn\u2019t come with mirrors?\nA Some of them have, but that one didn\u2019t have any.\nThe trial court also found that \u201csuch mirror * * * was a safety device\u201d. Defendants contend \u201cthat under the circumstances\u201d the rearview mirror was \u201cnot a safety device within the meaning of Section 52-1-10 NMSA 1978.\u201d Defendants rely on the statement in Hicks v. Artesia Alfalfa Growers Association, 66 N.M. 165, 169, 344 P.2d 475 (1959):\n[N]ot all things which promote safety can be considered as safety devices, and even those things which might be safety devices for one purpose may not be so for another purpose. Were it otherwise, practically every workmen\u2019s compensation case would come within the provisions of the increased penalty statute.\nIn Hicks there were heavy gauge wires holding sections of a prefabricated building in place during shipment. During unloading, Hicks was injured. The injury occurred because all the wires were cut prior to any unloading rather than cutting the wires for a particular section as the particular section was unloaded. Hicks suggests that the method of removing the wires during unloading \u201cwould not ordinarily be considered as having any relationship to safety devices to be used for unloading.\u201d (Id., 66 N.M. at 169, 344 P.2d 475.)\nThe above quotation from Hicks is helpful; it points out that what is or is not a safety device depends on the purpose involved. Our concern is with the statutory words \u201creasonable safety devices\u201d. What is a reasonable safety device is a factual question to be decided by the fact finder. Apodaca v. Allison & Haney, 57 N.M. 315, 258 P.2d 711 (1953), involved a device to give notice of deadly gases; Flippo v. Martin, 52 N.M. 402, 200 P.2d 366 (1948), involved a clamp to hold a cable; Pino v. Ozark Smelting & Mining Co., 35 N.M. 87, 290 P. 409 (1930), involved goggles to protect the worker\u2019s eyes. In each of the preceding three citations, the question of a reasonable safety device was a factual question.\nThe evidence supports the trial court\u2019s finding that the rearview mirror was a safety device.\nGeneral Use\nSection 52-l-10(B) requires that the safety device be in \u201cgeneral use\u201d in the industry. \u201cGeneral use\u201d means \u201cprevalent,\u201d \u201cusual,\u201d \u201cextensive though not universal,\u201d \u201cwide spread\u201d. Romero v. H.A. Lott, Inc., 70 N.M. 40, 369 P.2d 777 (1962). Romero states:\nWe have held that custom or usage is a matter of fact and not of opinion. Briggs v. The Zia Company, 63 N.M. 148, 315 P.2d 217; but, that proof of the fact may be established either by testimony of specific uses, Jones v. International Minerals and Chemical Corporation, 53 N.M. 127, 202 P.2d 1080, or by evidence of general practice of contractors, Apodaca v. Allison & Haney, 57 N.M. 315, 258 P.2d 711. See Briggs v. The Zia Company, supra. [Id., 70 N.M. at 43-44, 369 P.2d 777.]\nIn this case we need only to consider the \u201cindustry\u201d as the operation of the machine called \u201cBobcat\u201d. See Hicks v. Artesia Alfalfa Growers Association.\nPlaintiff testified:\nQ Could you see out of the back of that bobcat if you turned around and looked?\nA It is hard to see.\nQ Could you have seen if you had turned around and looked?\nA I don\u2019t think so because that window is way up high. You sure need a mirror on the side or the inside mirror.\nQ Have you ever driven any bobcats in any other business or industry?\nA Yes, sir.\nQ What other businesses or industry?\nA With Brennan Construction Company and Thompson and Zia and some other company. I can\u2019t remember right off the bat.\nQ Did all the bobcats that you drove there have mirrors on them?\nA Mostly all of them. They set some mirrors on them.\nQ Some had some mirrors?\nA Yes, sir, most of them.\nThis testimony is sufficient to sustain the finding that a rearview mirror was \u201cin common use in the industry\u201d and the finding that the rearview mirror was a \u201creasonable\u201d safety device.\nDefendants\u2019 failure to provide a reasonable safety device in general use met the requirement of negligence. Apodaca v. Allison & Haney.\nDefendants point out that the only evidence of \u201cgeneral use\u201d came from plaintiff, that no third-party witness was \u201cproduced to corroborate or elaborate on the use of rearview mirrors on \u2018Bobcats\u2019 in the construction industry.\u201d On this basis, defendants assert an absence of substantial evidence to support the trial court\u2019s findings. The credibility and weight of plaintiff\u2019s testimony was for the fact finder. Romero v. H.A. Lott, Inc. The trial court could properly find as it did on the basis of plaintiff\u2019s testimony.\nMotions\n(a) A picture of a \u201cBobcat\u201d was attached to defendants\u2019 brief. Defendants state that the picture came from an advertisement of the manufacturer; that the picture was not intended as evidence of the machine that plaintiff drove \u201cbut only to give this Court an idea of the general configuration of the machine involved rather than spend a number of pages trying to describe the vehicle.\u201d\nThe appeal was presented on the basis of a partial transcript of proceedings. A verbal description of the machine as well as the picture would be outside the record on appeal; neither would be entitled to consideration.\nPlaintiff\u2019s motion to strike the picture is granted. State ex rel. Alfred v. Anderson, 87 N.M. 106, 529 P.2d 1227 (1974); Porter v. Robert Porter & Sons, Inc., 68 N.M. 97, 359 P.2d 134 (1961).\n(b) Plaintiff\u2019s motion for an award of attorney fees for the services of his attorney on appeal is granted. NMSA 1978, \u00a7 52-l-54(D).\nThe judgment of the trial court is affirmed. Plaintiff is awarded $1,000.00 for the services of his attorney in this appeal. Defendants shall bear their appellate costs.\nIT IS SO ORDERED.\nHENDLEY and NEAL, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Sumner G. Buell, Santa Fe, for defendants-appellants.", "Alfred M. Carvajal, P.A., Albuquerque, for plaintiff-appellee." ], "corrections": "", "head_matter": "664 P.2d 1021\nVirgil C. MARTINEZ, Plaintiff-Appellee, v. The ZIA COMPANY and United States Fidelity and Guaranty Company, Defendants-Appellants.\nNo. 6093.\nCourt of Appeals of New Mexico.\nMay 17, 1983.\nSumner G. Buell, Santa Fe, for defendants-appellants.\nAlfred M. Carvajal, P.A., Albuquerque, for plaintiff-appellee." }, "file_name": "0008-01", "first_page_order": 40, "last_page_order": 44 }