Williams Ex Rel. Estate of Martinez v. Town of Silver City , 84 N.M. 279 ( 1972 )

OPINION

WOOD, Chief Judge.

Four boys, ranging in age from seven to twelve years, suffocated when the cave in which they were playing collapsed. The cave was in the bank of an arroyo in Silver City (Town of Silver City). Part of the arroyo was within an area which had been dedicated as a street. In the resultant action for wrongful death, the jury verdict was for plaintiffs. The trial court entered judgment in favor of defendants notwithstanding the verdict. Plaintiffs appeal and Silver City cross-appeals.

We consider questions directed to the liability of Silver City, discussing three issues: (1) the location of the cave in relation to the dedicated area; (2) Silver City’s claim that it did not “possess” the dedicated area; and (3) Silver City’s claim of sovereign immunity. Our disposition is a remand for a new trial. Because there is to be a new trial we discuss, as issue (4), whether funeral and burial expenses were a proper item of damages in this case.

Location of the cave.

Corbin Street is shown as a dedicated street on a survey of Silver City filed in 1879. Between 14th and 13th Streets, the arroyo enters the dedicated area from the northeast, crosses the dedicated area in a southwesterly direction and turns in a southerly direction to 12th Street. The cave was in the westerly bank of the arroyo near this turn. Whether this cave was within or west of the area dedicated as Corbin Street is the issue under this point. Silver City contends the evidence shows “. . . the cave-in and accident site was outside the westerly line of the dedicated way and on private property. .” Our answer is that the evidence of the location of the cave in relation to the dedicated area is conflicting and there is substantial evidence which would support a determination that the cave was within the dedicated area. Under the rules for reviewing evidence where there has been a judgment notwithstanding the verdict, the trial court could not have properly entered the judgment on the basis of the location of the cave. See Garcia v. Barber’s Super Markets, Inc., 81 N.M. 92, 463 P.2d 516 (Ct.App.1969).

Possession of the dedicated area.

? jury was instructed that Silver City could be found liable under either of two theories—ordinary negligence or attractive nuisance. An aspect of liability under either theory is that of Silver City’s duty to the decedents. Latimer v. City of Clovis, 83 N.M. 610, 495 P.2d 788 (Ct.App.1972). In instruction 14 concerning negligence, the trial court informed the jury that Silver City was the “possessor of the dedicated way” and outlined the basis for holding a possessor of land liable as that stated for licensees in Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364 (1966). In addition, the instruction on attractive nuisance implies that Silver City was the possessor of the dedicated area. We are not concerned with the status of the four boys because no issue as to their status was raised during the trial; a status question was not presented to the trial court until Silver City moved for judgment notwithstanding the verdict. Thus, the question as to the boys’ status was raised too late to be the subject of review. Fredenburgh v. Allied Van Lines, Inc., 79 N. M. 593, 446 P.2d 868 (1968). Our concern is whether Silver City was the possessor of the dedicated area and, thus, with whether it had any duty to the boys.

It has been suggested that the question of Silver City’s possession was never raised in the trial court. We disagree. The pre-trial order lists “[njegligence of defendant” as one of the contested issues of fact and the legal issues as those implicit in the issues of fact. In its opening statement, Silver City informed the jury that it denied there was any negligence for which it was “liable or responsible.” Silver City’s motion for a directed verdict at the close of plaintiffs’ case asserted the cave-in v/as not on any land belonging to, controlled by, or maintained or possessed by it. This claim was repeated in a motion for a directed verdict at the close of all the evidence, and expanded to refer to an alleged absence of any acceptance by Silver City of the dedicated area. In objecting to instruction 14, Silver City asserted it could not be liable as a possessor of land until the dedicated area had been accepted by it. The issue of Silver City’s possession of the dedicated area is before us for review.

Silver City’s liability is predicated on its alleged possession of the arroyo bank where the cave was located. Plaintiffs’ theory as to Silver City’s possession is “ . . . that the dedicated way had been accepted by . [Silver City] as a matter of law, and that . . . [Silver City] was, therefore, the possessor of the land. . . .” Silver City contends there is no evidence supporting an “acceptance” of the dedicated area and, as a matter of law, there was no “acceptance” and, therefore, no possession. Thus, both parties agree that “possession” depends on “acceptance.” No issue of “possession” independent of “acceptance” is presented for consideration.

Although Corbin Street appears as a dedicated street as early as 1879, the dedication alone was insufficient to place the dedicated area in Silver City’s possession. An “acceptance” is also required. Watson v. City of Albuquerque, 76 N.M. 566, 417 P.2d 54 (1966); City of Carlsbad v. Neal, 56 N.M. 465, 245 P.2d 384 (1952); State ex rel. Shelton v. Board of Com’rs of Bernalillo County, 49 N.M. 218, 161 P.2d 212 (1945).

Here, it is an undisputed fact that Corbin Street "... between 12th and 14th Streets . . . has never been opened, improved, or maintained by . . . Silver City for vehicular or pedestrian traffic. . . .” Silver City relies on this undisputed fact, together with evidence of non-use by it, in asserting there was no acceptance, and, therefore, no possession, as a matter of law. The fact that the area had never been opened or maintained as a street and the evidence of non-use does not require a ruling as a matter of law that there had been no acceptance by Silver City. The question of acceptance depends in part on the extent of the public use consistent with the dedication. Phillips Mercantile Company v. City of Albuquerque, 60 N.M. 1, 287 P.2d 77 (1955). Here, there is evidence that the dedicated area was used to a certain extent by Silver City and there is no evidence that this use was inconsistent with the dedication. See Beverly Wood Associates v. City of Albuquerque, 78 N.M. 334, 431 P.2d 67 (1967); 11 McQuillin, Municipal Corporations, § 33.50 (3rd Ed. revised 1964). Thus, the trial court could not properly enter judgment notwithstanding the verdict on the basis that, as a matter of law, there had been no acceptance of the dedicated area by Silver City.

Plaintiffs’ contention is that the uncontroverted facts show an acceptance of the dedicated area as a matter of law. These facts are to the effect that Silver City had exercised control over the dedicated area of Corbin Street between 12th and 14th Streets by installing a foot bridge for pedestrians, by a bridge for vehicular traffic at another point, by a drainage structure installed in the Corbin Street dedicated area south of 14th Street which drains into the arroyo, and by the fact the drainage structure was installed without condemnation proceedings. In addition, there is a map in evidence showing Corbin to be an open and existing street both north of 14th and south of 12th Streets. See McQuillin, supra, § 33.57. This evidence would support a factual determination that there had been an “acceptance.” The issue, however, is whether these facts require a determination as a matter of law that Silver City had accepted the dedicated area involved in this suit. We hold they do not.

“ . . . The city’s liability by acceptance arises only when it has done some act which unequivocally shows an intent to assume jurisdiction over the property dedicated. . . . ” The burden was on plaintiffs to prove acceptance, and the proof must be clear, satisfactory and unequivocal. Watson v. City of Albuquerque, supra; City of Carlsbad v. Neal, supra. Here, we have facts which would support a finding of acceptance, but there is also evidence indicating an absence of an intent to assume jurisdiction over the dedicated area in the vicinity of the cave-in. As examples — the long period of time that has elapsed since the dedication, and the fact that no street has been opened or maintained in the dedicated area. The evidence on which plaintiffs rely is not an unequivocal showing of an acceptance. The trial court erred in instructing the jury, as a matter of law, that Silver City was the possessor of the dedicated area here involved.

Alternative to its motion for judgment notwithstanding the verdict, Silver City moved for a new trial. Since the trial court could not properly have granted the motion for judgment notwithstanding the verdict on the basis there was no acceptance of the dedicated area by Silver City, and since it erroneously ruled, as a matter of law, that Silver City was the possessor of the area involved (it being a question of fact for the jury), the alternative motion for a new trial should have been granted.

Sovereign immunity.

Silver City contended at trial that it could have no liability to plaintiffs because •of sovereign immunity. The trial court rejected this defense. Silver City advances this defense as a justification for the judgment notwithstanding the verdict. Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480 (1943) applied the rule that a municipality could be liable in tort for corporate or proprietary functions but was immune from liability for governmental functions. Silver City asserts any function performed by it in this case, such as use of the arroyo for drainage purposes, was governmental and, thus, it was immune.

We disagree. Sections 5-6-18 to 5-6-22, N.M.S.A.1953 (Repl.Vol. 2), specifically authorize suits against municipalities based on negligence, with the provision that no judgment shall run against the municipality, “. . . unless there be liability insurance to cover the amount and cost of such judgment.” Section 5-6-20, supra. See Chavez v. Mountainair School Board, 80 N.M. 450, 457 P.2d 382 (Ct.App.1969). Answering interrogatories, Silver City has admitted it had comprehensive general liability insurance. No claim has been made that the insurance is insufficient to cover the amount of the verdict in favor of plaintiffs. Thus, no question of immunity from suit exists in this litigation at this time. See Baca v. Board of County Commissioners, 76 N.M. 88, 412 P.2d 389 (1966).

The trial court could not properly have granted judgment notwithstanding the verdict on the basis that Silver City was immune from liability.

Funeral and burial expenses.

An uncontroverted fact stated in the pre-trial order is: “Funeral and burial expenses were necessary and reasonable in the following amounts, $815.10, incurred by Plaintiff Monje, and $465.66, incurred by plaintiff Williams.” This uncontroverted fact was read to the jury without objection.

The trial court instructed the jury that it could consider funeral and burial expenses in arriving at the amount of any damages to be awarded. Silver City' objected, claiming that funeral and burial expenses were not recoverable as a matter of law.

Section 22-20-3, N.M.S.A.1953, states that the jury, in arriving at the damages to be awarded, may take “. . . into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment.

The uncontroverted fact is that the funeral and burial expenses were incurred by Monje and Williams, and the amount of those expenses shows a pecuniary injury. The evidence is undisputed that Monje was the father of three of the boys and that Williams was the mother of the other boy. They, as father and mother, are parties entitled to jrtdgment under § 22-20-3, supra. Thus, the funeral and burial expenses were recoverable. See Hansen v. Hayes, 175 Ore. 358, 154 P.2d 202 (1944).

The trial court could not have properly granted judgment notwithstanding the verdict on the basis that funeral and burial expenses were not proper items of damage.

Other issues discussed by the parties concern: (1) attractive nuisance — see Latimer v. City of Clovis, supra; (2) ordinary care on the part of Silver City; (3) contributory negligence and assumption of risk on the part of the deceased boys; (4) contributory negligence and assumption of risk on the part of the parents; and (5) two items excluded as evidence. None of these issues would justify a judgment notwithstanding the verdict.

The judgment notwithstanding the verdict was erroneous, and is reversed. Silver City’s objection to instruction 14 which declared it a possessor of the dedicated area as a matter of law should have been sustained. Because of this error the verdict in favor of plaintiffs cannot be reinstated.

The judgment is reversed and the cause is remanded for a new trial.

It is so ordered.

HENDLEY, J., concurs. SUTIN, J., partially concurring and dissenting.