Jaramillo v. Anaconda Co. , 95 N.M. 728 ( 1981 )

OPINION

WALTERS, Judge.

Defendant appeals the trial court’s allowance of increased compensation benefits based on its finding that defendant failed to supply safety devices required by § 52-1-10, N.M.S.A.1978, of our Workmen’s Compensation Act. Also challenged as excessive is the $3,750 attorneys fee awarded by the court. We reverse on both issues.

While walking on a travel-way at defendant’s mine, plaintiff fell through a manhole because an insecure cover shifted when he stepped on it. The trial court granted an additional 10% in compensation payments to plaintiff for the injuries he suffered, finding that the unsecured cover was in violation of the Mining Safety Act regulation requiring “railings, barriers, or covers” for openings near travel-ways, as well as that defendant failed to supply an adequate and reasonable safety device for the protection of plaintiff which § 52-1-10 B, N.M.S.A. 1978, requires if safety devices are not prescribed by law. The latter finding was gratuitous since there is no dispute that safety devices for mines, as prescribed by Federal Regulation 57.11-12 and adopted by the State Mining Safety Advisory Board, and State Regulation 63-28-5 outlining specific safety devices, were in effect at the time of the accident. Regulation 63-28-5 requires openings to be protected by a substantial hatch or bars, or be planked over, or barred by a railing. Both regulations have the force and effect of law. Section 69-8-6 B, N.M.S.A.1978.

The trial court indicated that it interpreted § 52-1-10 B, supra, to mean that

* * * [Providing a safety device means more than * * * physically providing a cover for that manhole. * * * [I]f it is not in place, it is not a safety device. * * * [T]here were two employees down there. * * * And [when] they came up * * * they left that lid ajar. * * * [That] was a sufficient violation of the safety device requirement to find that defendant * * * failed to provide a safety device. And the employer will be required to pay an additional ten percent.

Findings and conclusions were entered accordingly.

The manhole cover or hatch was a safety device authorized by both pertinent safety regulations; thus there was no “failure to provide” on the part of the employer.

New Mexico has not yet addressed the question of an employer’s duty to assure that safety devices provided are in place and operative at all times, a failure of which leads to liability for increased benefits to a workman injured thereby. We might feel differently about such a proposition if this were a case where evidence disclosed notice to the employer of missing or improperly operating safety equipment, but there is not even a suggestion of such facts here. It is clear that the hole was left uncovered by the negligence of fellow employees.

We believe the Tenth Circuit correctly decided a similar question when a skilled workman fell from a scaffold which did not have “an access ladder or equivalent safe access” attached to it at the time of the accident. The court ruled, in Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977), that merely because employees frequently did not use the ladders provided and made available to them by Kennecott, Kennecott could not be held liable for failing to “require use” of such safety equipment provided.

It was not the purpose of the Act to make an employer the insurer of his employees’ safety. * * * The ultimate aim of the act was not tó prevent all accidents, but to provide * * * employees with safe and healthful working conditions “so far as possible.” Certainly the Act requires employers to be diligent in protecting the health and safety of its employees; however, it does not hold the employer responsible for the prevention of all accidents. * * *

The meaning usually attributed to the word provide is to furnish, supply or make available.

Id. at 1118-19.

Construing a statute similar to ours but which additionally imposed upon an employer the obligation “reasonably to enforce compliance by employees” with safety practices and devices, the Wisconsin Supreme Court, in Icke Construction Co. v. Industrial Comm’n, 30 Wis.2d 63, 139 N.W.2d 841, 843 (1966), said that “where an employee’s injury was caused by momentary lack of compliance with a safety statute or order resulting from the unanticipated negligence of a fellow employee, that fact alone does not establish ‘failure of the employer to comply’ * *

Our statute requires only that the employer “provide” safety devices. To construe that requirement as obligating the employer to monitor all devices at all times, and to “watchdog” careless employees to overcome the type of fellow-employee negligence that occurred in this case, is to read more into the. statute than it contains.. Hicks v. Artesia Alfalfa Growers’ Ass’n, 66 N.M. 165, 344 P.2d 475 (1959). The employer had installed a kind of safety device required by law; it thus complied with the statutory mandate “to provide” such a device. Section 52-1-10 B, supra.

Plaintiff was not entitled to the penalty increase in benefits. The evidence clearly discloses his injuries resulted from negligence of his co-employees, and perhaps himself, but not because the required hatch or cover had not been provided by his employer.

With regard to the amount of attorney’s fees allowed, that matter is remanded to the attention of the trial judge for such modification as may be necessary to adjust any part of that fee as, in the trial court’s judgment, was attributed to the amount of the erroneously increased and escalated benefits awarded. See Johnsen v. Fryar, No. 4477, 19 N.M.S.B.B. 1024 (Ct.App.1980).

The matter of escalated benefits has been conceded by both parties to be governed by Casias v. The Zia Co., 94 N.M. 723, 616 P.2d 436 (Ct.App.1980).

The case is reversed and remanded for modification of the judgment entered, in accordance with this opinion.

IT IS SO ORDERED.

WOOD, J., concurs. SUTIN, J., dissents.