{ "id": 2716805, "name": "Leon DICKERSON, Claimant, Plaintiff-Appellee and Cross-Appellant, v. FARMER'S ELECTRIC COOP., INC., Employer, and United States Fidelity & Guaranty Company, Insurer, Defendants-Appellants and Cross-Appellees", "name_abbreviation": "Dickerson v. Farmer's Electric Coop., Inc.", "decision_date": "1960-04-06", "docket_number": "No. 6639", "first_page": "23", "last_page": "27", "citations": [ { "type": "official", "cite": "67 N.M. 23" }, { "type": "parallel", "cite": "350 P.2d 1037" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "170 Cal. 180", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2036959 ], "opinion_index": 0, "case_paths": [ "/cal/170/0180-01" ] }, { "cite": "42 N.M. 107", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569656 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/42/0107-01" ] }, { "cite": "169 P. 1087", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "66 Okl. 316", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 6443866 ], "opinion_index": 0, "case_paths": [ "/okla/66/0316-01" ] }, { "cite": "6 N.W.2d 640", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 0 }, { "cite": "241 Wis. 649", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8681709 ], "opinion_index": 0, "case_paths": [ "/wis/241/0649-01" ] }, { "cite": "65 N.M. 270", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2847652 ], "weight": 5, "pin_cites": [ { "page": "1069" } ], "opinion_index": 0, "case_paths": [ "/nm/65/0270-01" ] }, { "cite": "55 N.M. 261", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582978 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/55/0261-01" ] } ], "analysis": { "cardinality": 427, "char_count": 6500, "ocr_confidence": 0.692, "pagerank": { "raw": 9.876565150885509e-08, "percentile": 0.5348400621040068 }, "sha256": "abe996f54f1a9d8a48416931623f6067a2e5399921ce0e89b09888e87b075c34", "simhash": "1:a485c809cf16e5e0", "word_count": 1049 }, "last_updated": "2023-07-14T21:35:20.009334+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McGHEE, C. J., and CARMODY, MOISE, and CHAVEZ, JJ., concur." ], "parties": [ "Leon DICKERSON, Claimant, Plaintiff-Appellee and Cross-Appellant, v. FARMER\u2019S ELECTRIC COOP., INC., Employer, and United States Fidelity & Guaranty Company, Insurer, Defendants-Appellants and Cross-Appellees." ], "opinions": [ { "text": "COMPTON, Justice.\nAppellee brought this action for compensation under the provisions of the Workmen\u2019s Compensation Act as a result of injuries sustained by him while removing a transformer from a pole on which, there were energized wires carrying a current of 2300 volts of electricity.\nThe accident occurred February 1, 1958, while appellee was employed as a lineman for Farmer\u2019s Electric Coop., Inc. He was thereafter paid on a total disability basis for two months, at which time his payments were arbitrarily reduced 50% because he had failed to use \u201ca provided safety device\u201d supplied by his employer in the performance of his work.\nThereupon, appellee instituted this action to recover compensation for total and permanent disability by reason of the injuries thus sustained and, further, for an increase in compensation by 50% because of the employer\u2019s negligence in not providing a reasonable safety device in general use in the electrical industry, \u201cproperly insulated gloves.\u201d Appellants\u2019 answer contains admissions and denials. They admitted the employment, injury and wages, but denied other matters. As an affirmative answer, they alleged that appellee . had been supplied \u201ca pair of insulated gloves with which to handle electric wiring with safety\u201d; that the injuries sustained resulted from his failure to use them, and that claimant\u2019s compensation should be reduced by 50% for such failure. On the issues thus presented, the cause was tried to the court and, from a judgment for. claimant, the employer and the insurance carrier appeal.\nThe employer had supplied appelle'e with a pair of gloves and, while in the act of removing the transformer, without using them, appellee\u2019s right hand contacted a \u201chot wire,\u201d' causing severe burns, ultimately resulting in the amputation of the right hand, besides serious injury to his left knee. It was stipulated that his disability was total and permanent as of that time, leaving for a determination only the safety device aspect of the case.\nThe pertinent provisions of the applicable statute, \u00a7 59-10-7, 1953 Comp., as amended, read:\n\u201cIn case an injury to * * * a workman results from his failure * * to use a safety device provided by his employer, then the compensation otherwise payable under the Workmen\u2019s Compensation Act shall be reduced by fifty (50%) per centum. * * * If an injury to * * * a workman results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the workman, then the compensation otherwise payable under the Workmen\u2019s Compensation Act shall be increased by fifty (50%) per centum.\u201d\nFor the employer to avoid liability under the act, the safety device provided must be one generally used in the particular industry: The decisive question, therefore, is whether the pair of gloves supplied by him met that test. On the narrow issue presented, the question must be resolved against the employer. The uncontroverted evidence is that the safety device in general use in the electrical industry for the protection of its linemen, such as appellee, is a pair of rubber insulated gloves which will withstand 15,000 volts of electricity for a duration of three minutes and, which under the employer\u2019s self-imposed regulation, had been tested within 90 days. When tested, shortly after the accident, the last test having been made 208 days before the accident, the right-hand glove withstood the test; the left-hand glove failed the test, but to no great extent. Consequently, the gloves having failed the test, which was long overdue on the date of the accident, they cannot be classified as a safety device in \u201cgeneral use\u201d in the electrical industry. Wright v. Schultz, 55 N.M. 261, 231 P.2d 937; Hamilton v. Doty, 65 N.M. 270, 335 P.2d 1067, 1069. In Hamilton v. Doty, supra, we said:\n\u201cWe think the term \u2018in general use\u2019 manifests a clear legislative intent to completely eliminate any contention or controversy as to whether some other device may be substituted. To avoid liability under the Act, the device provided must be one generally used in the particular industry.\u201d\nCompare Daniels v. Industrial Commission, 241 Wis. 649, 6 N.W.2d 640; Wick v. Gunn, 66 Okl. 316, 169 P. 1087, 4 A.L.R.107. Also see Christensen v. Dysart, 42 N.M. 107, 76 P.2d 1; Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 P.35, where the \u201cwilful misconduct\u201d of the workman was at issue. We have no such issue here.\nThe trial court found that the employer\u2019s negligence in failing to supply a reasonable safety device in general use in the electrical industry was the \u201cproximate cause\u201d of the injury, and appellants argue that the finding is without support in the evidence. This argument requires but little consideration. The failure to supply the safety device is proscribed as negligence, and the statute fixes the penalty therefor. Hamilton v. Doty, supra; Wright v. Schultz, supra.\nAppellants advance the proposition that if appellee had been wearing the gloves supplied by th'e employer, the accident would not have happened. Even so, the position is untenable. A device less than the safety device used generally in the particular industry may not be substituted therefor. Hamilton v. Doty, supra.\nClaimant cross-appeals from the award of attorney fees. The lower court fixed the sum of $750 as a reasonable amount, and we are asked to increase that award. Ordinarily, the fixing of attorney fees in compensation cases in the lower court ,is a matter within the province of the trial court, but the facts here convince us that the fee allowed is too low. The potential compensation which appellee will receive is $16,500 and, in view of the nature of his injuries, a material change in the award appears quite remote. Consequently, we will increase the fee in the lower court to $2,000 and allow him an additional fee of $750 for the services of his attorney in representing him in this court.\nThe judgment should be affirmed, and it is so ordered.\nMcGHEE, C. J., and CARMODY, MOISE, and CHAVEZ, JJ., concur.", "type": "majority", "author": "COMPTON, Justice." } ], "attorneys": [ "Smith, Smith & Tharp, Hartley, Buzzard & Patton, Clovis, Keleher & McLeod, Russell Moore, Albuquerque, for appellants.", "Smith, Kiker & Kitts, Albuquerque, for appellee." ], "corrections": "", "head_matter": "350 P.2d 1037\nLeon DICKERSON, Claimant, Plaintiff-Appellee and Cross-Appellant, v. FARMER\u2019S ELECTRIC COOP., INC., Employer, and United States Fidelity & Guaranty Company, Insurer, Defendants-Appellants and Cross-Appellees.\nNo. 6639.\nSupreme Court of New Mexico.\nApril 6, 1960.\nSmith, Smith & Tharp, Hartley, Buzzard & Patton, Clovis, Keleher & McLeod, Russell Moore, Albuquerque, for appellants.\nSmith, Kiker & Kitts, Albuquerque, for appellee." }, "file_name": "0023-01", "first_page_order": 63, "last_page_order": 67 }