{ "id": 5340393, "name": "Isidore TAPIA, personal representative of Willie Gauna, Jr., Deceased, Plaintiff-Appellant, v. Blevins McKENZIE, Defendant-Appellee", "name_abbreviation": "Tapia v. McKenzie", "decision_date": "1971-08-06", "docket_number": "No. 588", "first_page": "116", "last_page": "125", "citations": [ { "type": "official", "cite": "83 N.M. 116" }, { "type": "parallel", "cite": "489 P.2d 181" } ], "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": "77 N.M. 638", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802224 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0638-01" ] }, { "cite": "82 N.M. 605", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333476 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0605-01" ] }, { "cite": "81 N.M. 491", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359274 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0491-01" ] }, { "cite": "79 N.M. 636", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2744898 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0636-01" ] }, { "cite": "82 N.M. 369", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332984 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/82/0369-01" ] }, { "cite": "75 N.M. 601", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5374916 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0601-01" ] }, { "cite": "77 N.M. 249", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2807427 ], "weight": 5, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0249-01" ] }, { "cite": "223 A.2d 323", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1966, "opinion_index": 1 }, { "cite": "34 A.L.R.2d 1277", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1952, "opinion_index": 1 }, { "cite": "61 So.2d 158", "category": "reporters:state_regional", "reporter": "So. 2d", "year": 1952, "opinion_index": 1 }, { "cite": "215 Miss. 397", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1846709 ], "year": 1952, "opinion_index": 1, "case_paths": [ "/miss/215/0397-01" ] }, { "cite": "196 So.2d 339", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9784604, 9784381 ], "year": 1967, "opinion_index": 1, "case_paths": [ "/so2d/196/0339-02", "/so2d/196/0339-01" ] }, { "cite": "78 A.2d 394", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1951, "opinion_index": 1 }, { "cite": "11 N.J.Super. 368", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 408998 ], "year": 1951, "opinion_index": 1, "case_paths": [ "/nj-super/11/0368-01" ] }, { "cite": "310 S.W.2d 877", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10182026 ], "pin_cites": [ { "page": "881" } ], "opinion_index": 1, "case_paths": [ "/sw2d/310/0877-01" ] }, { "cite": "19 Cal.Rptr. 118", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1962, "opinion_index": 1 }, { "cite": "199 Cal.App.2d 586", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2315040 ], "year": 1962, "opinion_index": 1, "case_paths": [ "/cal-app-2d/199/0586-01" ] }, { "cite": "148 Mont. 171", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 5242679 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "872" } ], "opinion_index": 1, "case_paths": [ "/mont/148/0171-01" ] }, { "cite": "91 Idaho 181", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 8584353 ], "weight": 3, "year": 1966, "opinion_index": 1, "case_paths": [ "/idaho/91/0181-01" ] }, { "cite": "153 F.2d 206", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1282682 ], "year": 1946, "opinion_index": 1, "case_paths": [ "/f2d/153/0206-01" ] }, { "cite": "155 P.2d 42", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1944, "opinion_index": 1 }, { "cite": "25 Cal.2d 605", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2231244 ], "year": 1944, "opinion_index": 1, "case_paths": [ "/cal-2d/25/0605-01" ] }, { "cite": "63 N.M. 364", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2778625 ], "weight": 2, "year": 1958, "opinion_index": 1, "case_paths": [ "/nm/63/0364-01" ] }, { "cite": "62 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 1 }, { "cite": "191 Va. 601", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2157164 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/va/191/0601-01" ] }, { "cite": "169 Kan. 296", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 264230 ], "weight": 4, "opinion_index": 1, "case_paths": [ "/kan/169/0296-01" ] }, { "cite": "58 N.M. 96", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587652 ], "weight": 2, "year": 1954, "opinion_index": 1, "case_paths": [ "/nm/58/0096-01" ] }, { "cite": "59 N.M. 43", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589295 ], "weight": 2, "year": 1955, 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"N.M.", "case_ids": [ 1575392 ], "weight": 4, "year": 1933, "pin_cites": [ { "page": "528" } ], "opinion_index": 1, "case_paths": [ "/nm/37/0525-01" ] }, { "cite": "79 N.M. 432", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2743349 ], "weight": 3, "year": 1968, "opinion_index": 1, "case_paths": [ "/nm/79/0432-01" ] }, { "cite": "342 F.2d 159", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 874899 ], "weight": 2, "year": 1965, "opinion_index": 1, "case_paths": [ "/f2d/342/0159-01" ] }, { "cite": "404 P.2d 776", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1965, "opinion_index": 1 }, { "cite": "66 Wash.2d 601", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1045193 ], "weight": 2, "year": 1965, "opinion_index": 1, "case_paths": [ "/wash-2d/66/0601-01" ] }, { "cite": "248 Ark. 996", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1597568 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/ark/248/0996-01" ] }, { "cite": "212 P. 338", "category": "reporters:state_regional", "reporter": "P.", "year": 1923, "opinion_index": 1 }, { "cite": "28 N.M. 349", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842089 ], "year": 1923, "opinion_index": 1, "case_paths": [ "/nm/28/0349-01" ] }, { "cite": "73 N.M. 303", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320253 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "306" } ], "opinion_index": 1, "case_paths": [ "/nm/73/0303-01" ] }, { "cite": "65 N.M. 32", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2847950 ], "weight": 2, "year": 1958, "opinion_index": 1, "case_paths": [ "/nm/65/0032-01" ] }, { "cite": "79 N.M. 722", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2741304 ], "weight": 2, "year": 1969, "opinion_index": 1, "case_paths": [ "/nm/79/0722-01" ] }, { "cite": "53 N.M. 56", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580786 ], "weight": 2, "year": 1949, "opinion_index": 1, "case_paths": [ "/nm/53/0056-01" ] }, { "cite": "214 P. 325", "category": "reporters:state_regional", "reporter": "P.", "year": 1923, "opinion_index": 1 }, { "cite": "28 N.M. 468", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842642 ], "year": 1923, "opinion_index": 1, "case_paths": [ "/nm/28/0468-01" ] }, { "cite": "79 N.M. 506", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2741241 ], "weight": 2, "year": 1968, "opinion_index": 1, "case_paths": [ "/nm/79/0506-01" ] }, { "cite": "69 N.M. 365", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2790248 ], "weight": 2, "year": 1961, "opinion_index": 1, "case_paths": [ "/nm/69/0365-01" ] }, { "cite": "77 N.M. 725", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2801741 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0725-01" ] }, { "cite": "74 N.M. 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"casebody": { "judges": [ "HENDLEY, J, concurs.", "SUTIN, J, specially concurring." ], "parties": [ "Isidore TAPIA, personal representative of Willie Gauna, Jr., Deceased, Plaintiff-Appellant, v. Blevins McKENZIE, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWQC)D, Chief Judge.\nThis car-cow collision case is concerned with summary judgment and res ipsa loquitur. ' '\n.On the day of the accident cattle had .been worked on the south side of the highway and 25 to 30 cows had been brought to the north side of the highway through an underpass.. These cows had been put into a pasture north of and adjacent to the highway. The pasture was approximately 800 acres and 35 to 40 cows were in the pasture. One. of the cows got onto the highway, but the record does not show when. After it was dark, Gauna, a motorist, collided with it. Gauna died from injuries received in the collision. His personal representative sued defendant for wrongful death. In this appeal, no claim is made that defendant was not the owner of the cow which got onto the highway.\nThe pasture from which the cow escaped was .separated from the highway by a fence and a cattle guard. The briefs concede this to be an interstate highway. The fence and the cattle guard had been in- \u2022 stalled by a contractor for the State Highway Department and that department owned and maintained the fence and cattle guard. Following the accident, it was determined that the portion of the fence inspected was in good repair. and that the cattle guard was \u201ctop pole,\u201d \u201creal good,\u201d \u201cin repair and not in disrepair.\u201d The cow\u2019s \u201ctracks crossed the cattle guard;\u201d and she was trailed \u201cup to where she got hit.\u201d \u201c * * * A cattle guard would ordinarily hold anything, hut it didn\u2019t this one.\u201d\nOn the basis of the foregoing, the trial court granted summary judgment; plaintiff appeals.\nSummary judgment.\nThe basis of any liability on the part of defendant in this case is negligence. See Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966); Grubb v. Wolfe, 75 N.M. 601, 408 P.2d 756 (1965); \u00a7 40A-8-10, N.M.S.A.1953 (Repl.Vol. 6, Supp.1969); \u00a7 64-18-62, N.M.S.A.1953 (Repl.Vol. 9, pt. 2, Supp.1969); compare \u00a7 22-20-1, N.M.S.A.1953.\nDefendant, the movant for summary judgment, had the burden of establishing the absence of a material issue of fact and that he was entitled to summary judgment as a matter of law. Sanchez v. Shop Rite Foods, 82 N.M. 369, 482 P.2d 72 (Ct.App.1971). In this case, defendant had the burden of establishing an absence of a material issue of fact on the question of negligence.\nDefendant did not meet this burden. The facts before the trial court make a prima facie showing as to the means by which the cow got out of the pasture.. These facts, however, do not make a prima, facie showing of no negligence, (see N.M. U.J.I. 12.1) on the part of defendant because they show nothing as to action, inaction or foreseeability on the part of defendant in connection with the means of escape. Compare Martin v. Board of Education of City of Albuquerque, 79 N.M. 636, 447 P.2d 516 (1968).\nThe summary judgment was improperly granted because defendant did not make a prima facie showing that he was entitled to summary judgment. Sanchez v. Shop Rite Foods, supra; compare Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct.App.1970).\nRes Ipsa Loquitur.\nBecause of the emphasis placed on res ipsa loquitur, both in the trial court and in this appeal, and because the summary judgment was erroneous, we briefly discuss this doctrine.\nIt is plaintiff\u2019s contention that under this doctrine he may go to the jury in this case upon a showing .that defendant\u2019s cow was on the' highway; that the highway was fenced' and that decedent\u2019s car collided with the cow. This is a misreading of Mitchell v. Ridgway, supra. In that case, the horse escaped from the defendant\u2019s corral; the highw\u00e1y was not fenced at this point. Our Supreme Court held the facts in Mitchell were sufficient to avoid a non-suit; that the trial court erred in dismissing the suit \u201c * * * for failure to state a claim upon which relief could be granted. * * * \u201d When the dismissal is for failure to state a claim upon which relief can be granted, the issue is whether the plaintiff would be entitled to recover under any state of facts provable under the claim that is made. Pattison v. Ford, 82 N.M. 605, 485 P.2d 361 (Ct.App.1971). No such question is involved in this case.\nIn holding a cause of action was stated, Mitchell v. Ridgway, supra, referred to res ipsa loquitur and indicated the doctrine could be applicable in car-cow collision cases. For it to be applicable:\n\u201c * * * The plaintiff must still fulfill the burden of satisfying the court, or the jury, that the accident was of a kind which ordinarily does not occur in the absence of someone\u2019s negligence, and that the agency or instrumentality, in this case a domestic animal, was within the exclusive control of the defendant. * * * \u00bb\nIf plaintiff fails to establish the essential elements of the doctrine, it would not be available to make a prima facie case of liability. Hisey v. Cashway Supermarkets, Inc, 77 N.M. 638, 426 P.2d 784 (1967).\nThus, under the New Mexico Supreme Court decisions, plaintiff would not be entitled to go to the jury in this case upon a showing that defendant\u2019s cow escaped through a Highway Department cattle guard and was upon the highway, causing the collision. To get to the jury, there must be evidence tending to establish the elements of res ipsa loquitur. Mitchell v. Ridgway, supra.\nIt would not be different in a summary judgment situation. If defendant makes a prima facie showing entitling him to summary judgment, plaintiff, to defeat summary judgment, must then show there is a factual issue. Rekart v. Safeway Stores, Inc, supra. Plaintiff could do this by showing there are facts tending to establish the elements of res ipsa loquitur. If there is no showing that a factual issue exists as to the elements of the doctrine, the doctrine would not be available to defeat the summary judgment. Thus, the facts on which plaintiff relies here would not defeat a summary judgment, once a prima facie showing supporting summary judgment is made by defendant, because these facts do not tend to establish the elements of res ipsa loquitur.\nThe summary judgment is reversed. The cause is remanded for further proceedings consistent with this opinion.\nIt is so ordered.\nHENDLEY, J, concurs.\nSUTIN, J, specially concurring.", "type": "majority", "author": "WQC)D, Chief Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\nWe disagree as to the meaning of summary judgment, the failure to explain applicable statutes, and the applicability of the doctrine of res ipsa loquitur. Therefore, I specially concur.\n(a) The Meaning of Summary Judgment\nMcKenzie, the owner of a cow, was awarded summary judgment in an action for the wrongful death of Gauna, Jr, brought by Tapia under the doctrine of res ipsa loquitur. The deceased was driving an automobile in the nighttime in an easterly direction .on Interstate Highway 40 (formerly Highway 66), when he collided with McKenzie\u2019s cow, between Clines Corners and Santa Rosa, New Mexico. Gauna is dead and silent. The only evidence is the deposition of' McKenzie.\nIn order to sustain summary jitdgment under the doctrine, McKenzie had the burden of showing there was no genuine issue of material fact because, as a matter of law, (1) Gauna\u2019s death was not proximately caused by the cow while it was under the exclusive control and management of McKenzie; or (2) that the presence of the cow on the highway was not of a kind 'which ordinarily occurs in the absence of \" negligence on the- part of McKenzie; or (3) McKenzie used ordinary care in his 'control' and management of the cow. See, U.J.I. 12.14; Renfro v. J. D. Coggins Co., 71 N.M. 310, 378 P.2d 130 (1963). The burden rested on McKenzie, Ballard v. Markey, 66 N.M. 265, 346 P.2d 1045 (1959), \"and \"not on Tapia. Coca v. Arceo, 71 N.M. 186, 193, 376 P.2d 970 (1962).\nMcKenzie failed in his burden. This means there is a genuine issue of material fact as to each element of res ipsa loquitur.\nSince there, are genuine material issues of fact, .they must be submitted to the jury. Zengerle v. Commonwealth Insurance Co. of New York, 60 N.M. 379, 291 P.2d 1099 (1955); Johnson v. Primm, 74 N.M. 597, 396 P.2d 426 (1964); Great Western Construction Co. v. N. C. Ribble Co., 77 N.M. 725, 427 P.2d 246 (1967). Tapia is entitled to present this case to the jury on the merits. Buffington v. Continental Casualty Company, 69 N.M. 365, 367 P.2d 539 (1961); Cortez v. Martinez, 79 N.M. 506, 445 P.2d 383 (1968). In other words, at the close of all the evidence in this' case at the time of trial, McKenzie is not entitled to a directed verdiet because' there are disputed issues of material fact.\nThe majority opinion holds only that McKenzie failed to establish the absence of negligence. But under the doctrine of res ipsa loquitur, Tapia would not be entitled to go to the jury unless he presents evidence tending to establish the elements of res ipsa loquitur. The reason I disagree is that if any elements of res ipsa loquitur are now absent, the majority has a duty to sustain the summary judgment. If McKenzie failed to establish the absence of negligence, can Tapia now add a claim based upon McKenzie\u2019s negligence ?\nThe majority opinion fails to set forth all of the material facts. To do so, might aid the trial court. It should not direct a verdict for McKenzie. On remand, the trial court must necessarily look to the opinion, and not to the judgment of mandate, for the law of the case. All matters determined by the decision become the law of the case and are binding upon the courts and litigants. First National Bank of El Paso, Texas v. Cavin, 28 N.M. 468, 214 P. 325 (1923).\nI have reviewed all of the New Mexico cases on summary judgment. It would be overly burdensome to review all of the principles. Decisions can be found on each side.\nSummary judgment is a dangerous instrument in the administration of justice when it denies a party the right to trial based upon factual issues. The obvious purpose of the rule from its origin in New Mexico in 1949, was to hasten the administration of justice and to expedite litigation by avoiding needless trials. Agnew v. Libby, 53 N.M. 56, 201 P.2d 775 (1949). This has not proven true in actual experience.\nThe history of Rule 56(c) in New Mexico indicates that summary judgment does not hasten the administration of justice; that trial courts decide isbues and grant summary judgments which, they believe, avoids a large trial docket. In the vast majority-of summary judgments'appealed, reversals occurred, and trial denied was trial delayed. It is the policy of courts of review to grant the right of trial whenever justice demands it. Trial courts must find a legal rather than a factual issue upon which to grant summary judgment. For example, in Electric Supply Co. v. United States Fidelity & Guaranty Co., 79 N.M. 722, 449 P.2d 324 (1969), the court said: \u201cHere, there is only a question of law as to whether there was an accord and satisfaction.\u201d In Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958), the court said:\nWhether, indeed, under the circumstances of a given case, a duty exists is a pure question of law for determination by the court.\nIt has been stated in some negligence cases that, ordinarily, negligence is a question for the jury, but when reasonable minds cannot differ as to the facts and inferences to be drawn therefrom, the question is one of law. Stake v. Woman\u2019s Division of Christian Service, 73 N.M. 303, 306, 387 P.2d 871 (1963). This is a questionable doctrine to follow. \u201cReasonable minds\u201d is an indefinite phrase. In this accident age, how can we determine what a reasonable mind is? In jury trials, reasonable minds are a cross-section of a community called for jury service. Each trial judge believes he has a reasonable mind, and knows what reasonable minds are, but he cannot know whether reasonable minds will differ. Where ah issue of negligence is involved, ordinarily the trial court should allow a jury to determine whether \u201creasonable minds\u201d can differ.\n(b) Applicable Statutes\nThe statutes covering animals, and livestock on highways need discussion.\nSection 40A-8-10, N.M.S.A.1953 (Repl. Vbl. 6, Supp. 1969), was originally adopted in the Criminal Code of 1936, N.M. Laws 1963, ch. 303, \u00a7\u00a7 8-10. It was rewritten in N.M. Laws 1966, ch. 44, \u00a7 1, and amended by Laws of 1967, ch. 180, \u00a7 1, and called \u201cAn Act Relating to Animals.\u201d We quote only \u00a7 A, because \u00a7 B relates to \u201cState Public Fenced Highways,\u201d \u00a7 C to highways within the jurisdiction of county commissioners, and \u00a7 D to \u201cunfenced roads or highways.\u201d Section E provides that \u201cWhoever commits unlawfully permitting livestock upon public highways is guilty of a petty misdemeanor.\u201d Section A reads as follows:\nA. Unlawfully permitting livestock upon public highways consists of any owner or custodian of livestock negligently permitting his livestock to run at large upon any part of a public highway which is fenced on both sides. [Emphasis added.]\nThe other statute, entitled \u201cAnimals on Highway,\u201d which was adopted under motor vehicle traffic laws is \u00a7 64-18-62, N.M. S.A.1953 (Repl.Vol. 9, pt. 2, Supp.1969), adopted in 1966. The pertinent parts are the following:\nB. It is unlawful for any person negligently to permit livestock to wander or graze upon any fenced highway at any time or, during the hours of darkness, to drive livestock along or upon any highway which is normally used by motor vehicles.\nC. Owners of livestock ranging in pastures through which unfenced roads or highways pass shall not be liable for damages * * * unless such owner of livestock is guilty of specific negligence other than allowing his animals to range in said pasture. [Emphasis added.]\nAs originally adopted in 1953, the word \u201cnegligently\u201d in \u00a7 B was omitted. It was inserted by a 1965 amendment. This means that the legislature did not intend strict liability or liability without fault, but it intended a cow owner to be liable if he failed to exercise ordinary care in permitting the cow to wander or graze upon any fenced highway. See Johnson v. Hickel, 28 N.M. 349, 212 P. 338 (1923), where the word \u201cnegligent\u201d does not appear in the statute; Prickett v. Farrell, 248 Ark. 996, 455 S.W.2d 74 (1970), where res ipsa loquitur is not followed, and Scanlan v. Smith, 66 Wash.2d 601, 404 P.2d 776 (1965), where an inference of negligence is allowed. It is also clear in the above statute that \u201cspecific negligence\u201d applies to unfenced roads and not fenced highways. Tapia did not have the duty of proving specific acts of negligence.\nInasmuch as both statutes now provide for negligence in permitting livestock to run at large or wander or graze upon a fenced highway, they can both be read together. See Steed v. Roundy, 342 F.2d 159 (10th Cir. 1965), which interpreted the statutes before amendment.\nI am unable to discover the legislative intent for adopting both statutes. However, the two statutes set forth above readily disclose that the purpose of each is to protect the public. Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966). For this reason, we must construe the facts and the statutes to carry out the legislative intent. The term \u201clivestock\u201d is of plural origin, but it has been held that one horse upon a fenced highway falls within the statute. Mitchell v. Ridgway, supra, or one bull, Carrasco v. Calley, 79 N.M. 432, 444 P.2d 617 (1968), or one calf, Grubb v. Wolfe, 75 N.M. 601, 408 P.2d 756 (1965).\nInasmuch as the majority opinion does not advise the trial court of the applicability of these statutes, error may occur in a trial on the merits. Can Tapia now add a claim based upon McKenzie\u2019s negligence arising out of these statutes ?\n(c) Res Ipsa Loquitur\nRes ipsa loquitur is a quagmire of judicial discussion. For a simple analysis, see Restatement of the Law, Torts, Second, \u00a7 328D and comment. Here, the authors comment that defendant\u2019s superior knowledge, or access to it, has been a very persuasive factor in the development of the principle and \u201cnormally, therefore, a verdict' cannot be directed for defendant in a res. ipsa loquitur case, solely upon the basis of defendant\u2019s evidence of his own due care.\u201d\nIn New Mexico, its first discussion arose in Hepp v. Quickel Auto & Supply Co., 37 N.M, 525, 528, 25 P.2d 197 (1933). The court recognized the doctrine as a rule of necessity based on the principle that under the common experience of mankind an accident of the particular kind does not happen except through negligence. Its chief justification is the superior knowledge of the defendant.\nRes ipsa loquitur does not apply on summary judgment in medical malpractice cases. Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964), and Buchanan v. Downing, 74 N.M. 423, 394 P.2d 269 (1964), because of the need for expert medical testimony.\nEvery negligence case in New Mexico discloses that the doctrine of res ipsa loquitur is accepted or denied by the fact finder after all the testimony has been heard by the court or the jury. Chapin v. Rogers, 80 N.M. 684, 459 P.2d 846 (1969); Williamson v. Piggly-Wiggly Shop Rite Foods, Inc., 80 N.M. 591, 458 P.2d 843 (1969); Hisey v. Cashway Supermarkets, Inc., 77 N.M. 638, 426 P.2d 784 (1967); Gray v. E. J. Longyear Co., 78 N.M. 161, 429 P.2d 359 (1967); Pack v. Read, 77 N.M. 76, 419 P.2d 453 (1966); Renfro v. J. D. Coggins Co., 71 N.M. 310, 378 P.2d 130 (1963); D A & S Oil Well Servicing v. McDonald Oil Corp., 70 N.M. 396, 374 P.2d 146 (1962); McFall v. Shelley, 70 N.M. 390, 374 P.2d 141 (1962); Tuso v. Markey, 61 N.M. 77, 294 P.2d 1102 (1956); Tafoya v. Las Cruces Coca-Cola Bottling Co., 59 N.M. 43, 278 P.2d 575 (1955); Zanolini v. Ferguson-Steere Motor Co., 58 N.M. 96, 265 P.2d 983 (1954).\nWe have adopted Dean Prosser\u2019s Statement that in ordinary cases, res ipsa loquitur \u201cavoids a non-suit and gets the plaintiff to the jury.\u201d Pack v. Read, 77 N.M. 76, 419 P.2d 453 (1966), and Tuso v. Markey, 61 N.M. 77, 294 P.2d 1102 (1956).\nUnder the doctrine of res ipsa loquitur, by denying summary judgment, I hold that McKenzie\u2019s evidence \u201cdoes not ordinarily destroy the inference or presumption of negligence raised by plaintiff\u2019s proof or authorize the jury to disregard it or authorize a finding of the absence of negligence as a matter of law or warrant an affirmative direction for defendant. The rule is that, when all the evidence is in, the question whether defendant has rebutted the inference * * * is for the jury, and the case must be submitted to the jury to determine where the preponderance of evidence lies, for the weight of the explanation, like the weight of the inference, is for the determination of the jury.\u201d 65A C.J.S. Negligence \u00a7 220.20.\nThe majority opinion relies on Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966).\nFirst, I must explain an error which exists at times in cases involving res ipsa loquitur. In Mitchell, the court said:\nWe are aware of the division of opinion that exists in other jurisdictions on the question of the applicability of res ipsa loquitur. The two views are well expressed in Wilson v. Rule, 169 Kan. 296, 219 P.2d 690 and Rice v. Turner, 191 Va. 601, 62 S.E.2d 24, where there was a refusal to apply the rule and in Scanlan v. Smith, 66 Wash.2d 601, 404 P.2d 776 the opposite result was reached. Although Scanlan v. Smith, supra, claims to represent the majority view the numerical difference is very close and the presence of statutes in some states weakens the claim. [77 N.M. at 252, 421 P. 2d at 781.]\nRes ipsa loquitur was not an issue in Scanlan. That court held \u201cthe presence of the defendant\u2019s livestock on the highway was sufficient to raise a permissible inference of negligence which would take the plaintiff\u2019s case to the jury. * * * \u201d The difference between a permissible inference of negligence and the doctrine of res ipsa loquitur is adequately explained in Hepp v. Quickel Auto & Supply Co., 37 N.M. 525, 25 P.2d 197 (1933).\nThe doctrine of permissible inference is not an issue, and I express no opinion upon its applicability in this case.\nFrumer-Friedman, Personal Injury, Vol. 1, Animals, \u00a7 1.02, p. 274.2, Note 28, and supplement, points out that five jurisdictions, including New Mexico, favor res ipsa loquitur, and three jurisdictions are contrary. I do not know whether this analysis is accurate. In any event, Mitchell v. Ridgway, supra, declares the doctrine to exist in New Mexico. We are bound by this doctrine.\nSecond, the majority opinion misapplies Mitchell v. Ridgway, supra. Summary judgment was not an issue. The trial court granted a motion to dismiss plaintiff\u2019s complaint because it failed to state a cause of action. Since the complaint stated a cause of action, the court announced that plaintiff must establish the elements of the doctrine of res ipsa loquitur. A summary judgment amounts to more than the motion to dismiss. Pederson v. Lothman, 63 N.M. 364, 320 P.2d 378 (1958). In the instant case, this burden has been met by reversing summary judgment in favor of McKenzie.\nMcKenzie relies on Leet v. Union Pacific R. Co., 25 Cal.2d 605, 155 P.2d 42 (1944). But the court said that instances in which inferences are dispelled in res ipsa are rare. McKenzie quotes the following from Atchison, T. & S. F. Ry. Co. v. Simmons, 153 F.2d 206 (10th Cir. 1946), a New Mexico case, and relies on the emphasis added.\n\u201c \u2018It creates an inference of fact. It casts on the opposite party the duty of going forward with evidence or risking that the jury will infer negligence from the occurrence. It will take the case to the jury unless the entire evidence is such that the presumption cannot stand against it. It is not enough that the evidence of the defendant would, if true, be sufficient to rebut the presumption because it is for the jury to pass upon the credibility of the witnesses and the truth of the testimony. To justify a directed verdict the evidence must be so conclusive that minds of reasonable men could not differ as to the conclusions to be drawn therefrom.\u2019 (emphasis added).\u201d\nThis language strongly supports Tapia\u2019s position that res ipsa is a factual question which makes a directed verdict a very difficult peak to climb.\nDefendant contends that the evidence presented makes the doctrine inapplicable because it established how the cow got on the highway. Even if true, this does not destroy the inference because there is no explanation by McKenzie of any care used to restrain the freedom of this cow before it reached the cattle guard.\nLet us proceed with the application of the doctrine of res ipsa loquitur to determine if an issue of fact is present.\nWas the cow under the Exclusive Management and Control of McKenzie?\nMcKenzie contends he did not have exclusive control and management of the cow because the State of New Mexico, as well as himself, had control; that there is nothing more than surmise and speculation to connect McKenzie\u2019s exercise of control with the subsequent harm. He relies on Renfro v. J. D. Coggins Co., 71 N.M. 310, 378 P.2d 130 (1963). This case was tried to a court and all evidence was presented and findings made. It did not determine the meaning of \u201cexclusive control.\u201d The Supreme Court held that control is not \u00f1e'cessarily control exercised at the time of injury, but may be control exercised at the time of- a negligent act which subsequently results in injury.\nThe State of New Mexico had no control over the cow before or at the time of the death on the highway. It had no control over the original escape of the cow. It had no duty to keep employees in this area to restrain the freedom of the cow or to exercise due care to avoid permitting the cow to cross a cattle guard or to \" wander or run at large upon the highway. This was a statutory duty of McKenzie alone. See Whitt v. Jarnagin, 91 Idaho 181, 418 P.2d 278 (1966); where a railroad had control of a cattle guard.\nThe cow was the causative factor in the death of Gauna, and an issue of fact exists whether it was under the exclusive control and management of McKenzie. \u201cExclusive control\u201d does not mean actual, physical control at the time of the accident. Pollard v. Todd, 148 Mont. 171, 418 P.2d 869, 872 (1966). It does not have a narrow meaning. The test is one of the right of control rather than actual control. Ragusano v. Civic Center Hospital Foundation, 199 Cal.App.2d 586, 19 Cal.Rptr. 118 (1962); Parlow v. Carson-Union-May-Stern Co., 310 S.W.2d 877, 881 (Mo.1958).\nMcKenzie desires to file a third party complaint against the New Mexico State Highway Department. If this occurs, and, at the time of trial, there is evidence produced that the State Highway Department shared in- the control, the doctrine of \u201cexclusive control\u201d can apply to both. Marzotto v. Gay Garment Co., 11 N.J.Super. 368, 78 A.2d 394 (1951); 65A C.J.S. Negligence \u00a7 220.15d. Prosser on Torts, ch. 7, \u00a7 43 (1941), states:\nThe inference of negligence may arise against each of two or more parties who share control- \u2014 as where each is under an obligation to inspect, and the defect is one which could have been discovered by such inspection.\nFor purposes of summary judgment, there' is sufficient evidence to establish that an issue exists whether McKenzie had- exclusive control of the cow when it found a way to escape the fenced area and meandered on the highway. Ganna\u2019s death was proximately caused by the cow being on the highway.\nWas this the kind of Accident that Ordinarily does not occur in the Absence of Negligencef\nThe second important segment of res ipsa loquitur is whether the cow accident ordinarily does not occur in the absence of McKenzie\u2019s negligence. How.can we tell? We do have certain guides to follow: (l).to rely os the common experience of mankind; (2) the cause of-the cow being on the highway which is accessible to McKenzie and inaccessible to Tapia; (3) the duty of McKenzie to exercise reasonable care to prevent livestock from wandering on a fenced public highway; (4) the duty of McKenzie to protect the motoring public; (5) the absence of an explanation by McKenzie that the accident arose from want of care; (6) the animal Acts which are designed primarily to reduce collisions between motor vehicles and animals on fenced public highways.\nGrubb v. Wolfe, 75 N.M. 601, 408 P.2d 756 (1965), lighted the way on the duties of a cow owner by pointing out that \u201cTime and progress have forged the change.\u201d The reasons are clearly set forth. The facts and statutes are pre-1966, but the court said:\n\u25a0 The foregoing- authorities establish that the owner of livestock has a duty to care for his property as a reasonable man, and that he may be liable for injuries to motorists resulting from collisions with his animals due to his negligence in permitting them to be on the highway.\nThis decision, was followed in Mitchell v. Ridgway, supra, where the doctrine of res ipsa was adopted, and distinguished in Carrasco v. Calley, supra, where a district court found no evidence of negligence of a bull owner under an unfenced highway act.\nIn Mitchell v. Ridgway, supra, the court said:\nModern highways and vehicular traffic in New Mexico with livestock permitted to roam presents an intolerable situation.\nI believe the facts in this case, the statutes in effect, and the decisions mentioned above show that \u00e1n infer\u00e9nce of negligence arises and the cow accident would hot have occurred if McKenzie had exercised due care. See also Whitt v. Jarnagin, supra.\nDefendant relies on Steed v. Roundy, supra. This is a New Mexico case involving an automobile-horse accident in Valencia County. The case was tried by the court, and findings made that the defendant was not negligent. This was affirmed. In interpreting an earlier animal act with \u201cnegligent\u201d permission to allow livestock to run at large, the court said:\nThe later statute specifically requires proof of negligence on the part of the owner of livestock running at large on the public highways before liability would attach.\nThis case was decided March 1, 1965, before Mitchell v. Ridgway, supra, decided December 10, 1966. Mitchell v. Ridgway, supra, adopted res ipsa loquitur under the same statute without mentioning the federal case. I find no further citations of the Steed case. We confirm Mitchell v. Ridgway, supra.\nDefendant also relies on Wilson v. Rule, 169 Kan. 296, 219 P.2d 690, and Rice v. Turner, 191 Va. 601, 62 S.E.2d 24, cited in Mitchell v. Ridgway, supra. These views were not followed.\nThe defendant relies on Hughes v. W & S Construction Co., 196 So.2d 339 (Miss. 1967). This was a jury trial in which res ipsa was hot involved, but, by way of dicta, the court held that if it were involved, the defendant fully sustained his burden of proving lack of negligence. It relied on its earlier decision of Pongetti v. Spraggins, 215 Miss. 397, 61 So.2d 158, 34 A.L.R.2d 1277 (1952). These cases do not support summary judgment, but support a peremptory instruction after all the evidence is in and defendant\u2019s testimony is clear and undisputed that he exercised reasonable care to restrain the freedom of his calf.\n, McKenzie has not yet disclosed what care, if any he exercised to restrain the cow from leaving the fenced area.\nMcKenzie closes his argument with a strong appeal that res ipsa loquitur creates an intolerable and unjust burden on livestock owners and makes them insurers of the public safety. This is not true. All of his alleged defenses are preserved. The legislature made negligence of the livestock owner a misdemeanor in order to protect the motorist. This is the public speaking, At nighttime, on vast, divided, fenced, interstate highways, livestock owners must recognize the danger to motorists\u2019 created by the presence of a cow on the highway. They have a duty .to protect human life more than the duty they have to protect the life of one cow. They must restrain the freedom of the cow, not to preserve its life, but to preserve human life. They must not play with human life by saying, \u201cnot only could the cow not have gotten through that fence, it did not. Nothing came through that fence. A cattle guard would ordinarily hold anything, but it didn\u2019t this one.\u201d It sounds like the cow flew over the moon and took Gauna\u2019s life.\nThe doctrine of res ipsa loquitur is a rule of common sense, and common sense permits an inference from proof of the injury and the physical agency inflicting it, without requiring proof of facts pointing to the responsible human cause. Witort v. United States Rubber Co., 3 Conn.Cir. 690, 223 A.2d 323 (1966).\nBy this special concurring opinion, I do not hold that Tapia is entitled to a victory. I only hold that Tapia is entitled to a trial before a jury requested by McKenzie.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Eugene E. Klecan, James T. Roach, Albuquerque, for plaintiff-appellant.", ". Charles A. Pharris, Keleher & McLeod, Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "489 P.2d 181\nIsidore TAPIA, personal representative of Willie Gauna, Jr., Deceased, Plaintiff-Appellant, v. Blevins McKENZIE, Defendant-Appellee.\nNo. 588.\nCourt of Appeals of New Mexico.\nAug. 6, 1971.\nRehearing Denied Sept. 7, 1971.\nEugene E. Klecan, James T. Roach, Albuquerque, for plaintiff-appellant.\n. Charles A. Pharris, Keleher & McLeod, Albuquerque, for defendant-appellee." }, "file_name": "0116-01", "first_page_order": 242, "last_page_order": 251 }