{ "id": 2768255, "name": "Juanita TERRY, as Personal Representative and Administratrix of the Estate of Bayard Edwin Weibert, Deceased, and Dannie Weibert Kuhner, Plaintiffs-Appellants, v. Charles DUNLAP et al., Defendants-Appellees", "name_abbreviation": "Terry ex rel. Estate of Weibert v. Dunlap", "decision_date": "1972-07-14", "docket_number": "No. 839", "first_page": "86", "last_page": "88", "citations": [ { "type": "official", "cite": "84 N.M. 86" }, { "type": "parallel", "cite": "499 P.2d 1008" } ], "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": "257 Iowa 1177", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8644710 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/iowa/257/1177-01" ] }, { "cite": "69 N.M. 36", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2791632 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0036-01" ] }, { "cite": "75 N.M. 375", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5372136 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0375-01" ] }, { "cite": "61 N.M. 77", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5318637 ], "weight": 3, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/61/0077-01" ] }, { "cite": "81 N.M. 541", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370640 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/81/0541-01" ] }, { "cite": "37 N.M. 525", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575392 ], "weight": 3, "year": 1933, "opinion_index": 0, "case_paths": [ "/nm/37/0525-01" ] }, { "cite": "71 N.M. 204", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5347397 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/71/0204-01" ] }, { "cite": "247 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "108 Ill.App.2d 335", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1595901 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app-2d/108/0335-01" ] }, { "cite": "81 N.M. 92", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5365264 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0092-01" ] }, { "cite": "83 N.M. 285", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331794 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0285-01" ] }, { "cite": "83 N.M. 116", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340393 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/83/0116-01" ] }, { "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" ] } ], "analysis": { "cardinality": 541, "char_count": 9235, "ocr_confidence": 0.681, "pagerank": { "raw": 1.0927029230275213e-07, "percentile": 0.5660341587482514 }, "sha256": "bd37b19bc1e5b0cfae4065a041e296bee47868ca01454171fddf50880c88e5e4", "simhash": "1:9d25842b500acd48", "word_count": 1538 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ ".HERNANDEZ, J., concurs", "1SUTIN, J. (dissenting).", "'SUTIN, Judge" ], "parties": [ "Juanita TERRY, as Personal Representative and Administratrix of the Estate of Bayard Edwin Weibert, Deceased, and Dannie Weibert Kuhner, Plaintiffs-Appellants, v. Charles DUNLAP et al., Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nCOWAN, Judge.\nPlaintiffs appeal in this wrongful death action following a jury verdict for the defendants. We affirm.\nA yearling belonging to the defendants Dunlap escaped from a pasture also owned by the Dunlaps. The animal apparently crossed a cattleguard installed and maintained by the New Mexico Highway Department where State Road 42 intersects with U. S. Highway 285 in De Baca County. A vehicle travelling on Highway 285 struck the animal and then collided with another vehicle in which plaintiffs\u2019 decedent was riding.\nUpon conclusion of the evidence, the jury was instructed on the issue of the Dunlaps\u2019 negligence. The court refused to instruct the jury on the theory of res ipsa loquitur. It is this refusal to instruct that plaintiffs now assign as error. We agree with the trial court\u2019s ruling.\nThe New Mexico Supreme Court, in Hisey v. Cashway Supermarkets, Inc., 77 N.M. 638, 426 P.2d 784 (1967), stated:\n\u201cThe factual basis necessary as a premise for application of res ipsa loquitur requires proof that (1) plaintiff\u2019s injury was proximately caused by an agency or instrumentality under the exclusive control of the defendant; and (2) the incident causing the injury is of the kind which ordinarily does not occur in the absence of negligence by the person having control of the instrumentality.\u201d\nThere was no evidence that any animal had ever escaped onto the highway via the cattleguard.\nThis fact, coupled with that of the ownership and control of the cattleguard by the New Mexico Highway Department, precludes the application of the doctrine of res ipsa loquitur. Tapia v. McKenzie, 83 N.M. 116, 489 P.2d 181 (Ct.App.1971). The proof falls short of support for either aspect of the doctrine.\n\u201cA party is entitled to an instruction \u2022on his theory of the case if such a theory is pleaded and supported by the evidence. * * * Conversely, if there is \u25a0no evidence to support the theory, it \u25a0\u25a0would be reversible error to instruct on that theory. * * * \u201d\nAragon v. Speelman, 83 N.M. 285, 491 P.2d 173 (Ct.App.1971); Garcia v. Barber\u2019s Super Markets, Inc., 81 N.M. 92, 463 P.2d 516 (Ct.App.1969).\nWe fail to find evidence in the record \"which would support an instruction on res ipsa loquitur. Thus, the trial court\u2019s refusal to give the instruction was proper.\nThe judgment is affirmed.\nIt is so ordered.\n.HERNANDEZ, J., concurs\n1SUTIN, J. (dissenting).\n'SUTIN, Judge\n(dissenting).\nI respectfully dissent.\nIn Freer v. Rowden, 108 Ill.App.2d 335, 247 N.E.2d 635 (1969), the court said:\nWhere general negligence has been pleaded it is a question of law whether or not the doctrine of res ipsa loquitur applies in a given case.\nUnder Count II, plaintiffs pleaded general negligence. Therefore, the doctrine of res ipsa loquitur applies. The critical issue is whether under the facts presented, the exclusive control of the yearling by defendants created an incident causing the death, which incident is of the kind which ordinarily does not occur in the absence of defendants\u2019 negligence. Ford v. Etheridge, 71 N.M. 204, 377 P.2d 386 (1962).\nA review of the record convinces me there was sufficient evidence upon which to present to the jury the issue of res ipsa loquitur. I believe the trial court erred when it refused plaintiff\u2019s tendered jury instruction U.J.I. 12.14. To review the evidence would not add value to this dissenting opinion. See Tapia v. McKenzie, 83 N.M. 116, 489 P.2d 181 (Ct.App.1971).\nDefendants raised an interesting question which has not been specifically decided in New Mexico. It is stated as follows:\nWhen the evidence presented gives rise to permissible inference of specific acts of negligence on the part of defendants, is there any basis for the trial court to instruct on the doctrine of res ipsa loquitur ?\nThe defendants say \u201cNo.\u201d I say \u201cYes.\u201d\nNew Mexico Uniform Jury Instructions \u2014Civil\u2014U.J.I. 12.14, committee comment, page 166, states:\nThe question of whether or not specific acts of negligence and res ipsa loquitur may be relied upon by a plaintiff has not been settled by our court. Tuso v. Markey, supra. [See infra],\nA. It is Proper to Instruct on Specific Acts of Negligence and Res Ipsa Loquitur in Negligence Cases.\nThe trial court instructed the jury that, (1) it is unlawful to negligently permit livestock to wander or graze upon any fenced highway; (2) it is negligent to violate \u00a7 40A-8-10(A), (B) (1), N.M.S.A. 1953 (Repl. Vol. 6, Supp.1971). It refused to instruct on res ipsa loquitur. The jury rendered a verdict for defendants.\nDefendants submit that the question stated above must be answered in the negative based upon Hepp v. Quickel Auto & Supply Co., 37 N.M. 525, 25 P.2d 197 (1933), with reference made to Harless v. Ewing, 81 N.M. 541, 469 P.2d 520 (Ct.App.1970); Tuso v. Markey, 61 N.M. 77, 294 P.2d 1102 (1956).\nIn Hepp, supra, the court passed the question of applicability of the doctrine of res ipsa loquitur. Nevertheless, the court said:\nBut, where the facts and circumstances surrounding the injury themselves point with sufficient definiteness to negligence on the part of defendant to warrant an inference thereof, then the reason for an application of the rule [res ipsa loquitur] fails. The plaintiff under such circumstances is entitled to reach the jury, not by reason of any presumption deduced from common experience, but by force of permissible inferences from the evidence itself.\nHepp cited no authority for its conclusion. Tuso, supra, referred to Hepp\u2019s rule, but despite the language set forth, it held contrary to the Hepp rule. Two things must be noted.\n(1) In Tuso, a review of the transcript of the record shows that the trial court did instruct the jury on specific acts of negligence of defendant. Nevertheless, the Supreme Court ruled that it was reversible error to refuse an instruction on res ipsa loquitur. This means that the trial court must instruct on specific acts of negligence and res ipsa loquitur if there is sufficient evidence to submit to the jury both theories of liability. The Hepp rule is erroneous. If res ipsa loquitur was not a question involved in that decision, Heron v. Smith, 75 N.M. 375, 404 P.2d 856 (1965), or was unnecessary to the decision, it was dicta and not binding as a rule of law. Rocky Mountain Life Insurance Company v. Reidy, 69 N.M. 36, 363 P.2d 1031 (1961). If it should be considered as a rule of law, it should be overruled.\n(2) Tusa held the plaintiff had the right to introduce evidence to prove specific acts of negligence. If the plaintiff was successful, he ought not to be penalized for succeeding. This has been construed to mean that \u201cUntil the jury decided the case, we could not know whether plaintiff had proved specific acts of negligence, an absence of negligence on defendant\u2019s part, or the facts on which to apply the doctrine of res ipsa loquitur.\u201d Harless v. Ewing, supra. Neither does the plaintiff know whether he has succeeded in proving specific acts of negligence. This means that the trial court must instruct on both theories in order not to penalize the plaintiff.\nFor cases which support this legal position, see Freer v. Rowden, supra; Schneider v. Swaney Motor Car Co., 257 Iowa 1177, 136 N.W.2d 338 (1965).\nB. It is Unfair to Force an Election of Instructions at the Close of a Case.\nTo force the plaintiff or the trial court to elect between instructing on specific acts of negligence and res ipsa loquitur is an act of injustice.\nFrom many years of experience, we have learned that a phrase or sentence in lengthy testimony may be decisive. Either may be substantial in determining whether a factual issue should be submitted to the jury. Res ipsa loquitur is deeply imbedded in our jurisprudence. It should not be denied a plaintiff in a negligence case upon the technical snap of the pen.\nIn animal cases of this nature, neither the plaintiff nor the trial court, realistically, can determine from the facts and circumstances surrounding the injury whether they point with sufficient definiteness to defendants\u2019 specific acts of negligence. This question is for the jury. In this case, the jury did not believe defendants were guilty of specific acts of negligence. If the jury did not so believe, the jury should have the right to determine whether defendants were negligent by inference where the two elements of res ipsa loquitur are proven.\nJustice Charles Evans Hughes once said: \u201cIn a number of cases, dissenting opinions have in time become the law.\u201d One of the reasons is that trial courts and courts of review often decide cases based upon personal evaluation rather than upon the evidence or the transcript of the record, and the law applicable thereto. I trust that the Supreme Court will, if requested, rule upon this new principle of law in New Mexico.", "type": "majority", "author": "COWAN, Judge." } ], "attorneys": [ "Charles M. Tansey, Tansey, Roscbrough, Roberts & Gerding, Farmington, Donald Brown, Roswell, for appellants.", "Bob F. Turner, Russell D. Mann, Atwood, Malone, Mann & Cooter, Roswell, for appellees." ], "corrections": "", "head_matter": "499 P.2d 1008\nJuanita TERRY, as Personal Representative and Administratrix of the Estate of Bayard Edwin Weibert, Deceased, and Dannie Weibert Kuhner, Plaintiffs-Appellants, v. Charles DUNLAP et al., Defendants-Appellees.\nNo. 839.\nCourt of Appeals of New Mexico.\nJuly 14, 1972.\nCharles M. Tansey, Tansey, Roscbrough, Roberts & Gerding, Farmington, Donald Brown, Roswell, for appellants.\nBob F. Turner, Russell D. Mann, Atwood, Malone, Mann & Cooter, Roswell, for appellees." }, "file_name": "0086-01", "first_page_order": 242, "last_page_order": 244 }