American Insurance Company v. Foutz and Bursum , 60 N.M. 351 ( 1956 )

SADLER, Justice.

The appellants (plaintiffs 'below) having paid their insured for damages suffered in a gas explosion, as subrogees under the terms of the policies issued, sued the appellees (defendants) through whose negligence the explosion was charged to have occurred for reimbursement to plaintiffs of the amounts so paid them by reason of the damages suffered in said explosion. The cause was tried to a jury and resulted in a verdict in favor of the defendants upon which judgment was duly entered. This appeal is prosecuted by the plaintiffs for the review by us of the judgment so entered against them.

A brief statement of the proceedings below will at this point be made to give a general understanding of the case from the outset to be followed later by an amplified statement of the facts in more immediate connection with the argument being made at the time. The action is one brought by plaintiffs as subrogees of J. Vemon Bloomfield and Jessie Bloomfield to recover the amounts paid by each of two insurance companies to their insured under policies for damages to a house and its contents located in Farmington, New Mexico, caused by an explosión on September 26, 1952. The action is brought against defendants, Foutz & Bursum, a copartnership, and J. L.' Foutz and Holm Bursum, individual members thereof, who were engaged as contractors for the City of Farmington in the laying of sewer pipes. It was alleged they negligently struck a service line connected to the Bloomfield house, breaking it and causing gas to escape, which ignited and exploded.

Damages were demanded by Pennsylvania Fire Insurance Company, one of the plaintiffs in the action below, in the sum of $10,000 as the amount paid by it for damage to the house and damages were sought by American Insurance Company, one of the plaintiffs below, in the sum of $2,455.68, as the amount paid by it for damage to the contents of the house. An answer was filed by the defendants denying negligence and later a third party complaint was filed by them against Southern Unión Gas Company, seeking reimbursement from it of any amount which might be recovered against them by the plaintiffs.

At the close of plaintiffs’, case the third party defendant, Southern Union Gas Company, moved for a directed verdict and the defendants interposing no objection to-'such 1 motion, the court granted the dismissal prayed for. The trial then proceeded as between' the plaintiffs and the defendants and resulted in a verdict in favor of the latter upon which judgment was duly entered. A motion for judgment non obstante veredicto, dr in the alternative for a new trial, having been filed by the plaintiffs (appellants), after hearing thereon the court denied the same. .So much for the proceedings-up to the time of judgment and transfer of the cause to this court through an appeal by plaintiffs.

The first point presented as a ground for reversal grows out' of the trial court’s action in allowing five peremptory challenges to -the two original ■ defendants and a like number to the third party defendant, Southern Unión Gás-Company. The plain-, tiffs or their counsel for them, insist the original -defendants and the third party defendant were only entitled to a- total of five peremptory challenges as’ between them. The defendants took appropriate action below to reserve-' for review the correctness of the trial court’s ‘ruling in this particular. Heneé, this action alone by the trial court, presents reversible error if counsel be correct in the contention here made.

The governing statute, 1953 Comp. '§ 19-1-36, reads as follows:

“In all civil cases each party may challenge peremptorily -five (5)- jurors and no -more,, whether the plaintiffs or defendants shall be single or joined.”

This statute was before us for construction in Morris v. Cartwright, 57 N.M. 328, 258 P.2d 719, 721. In that case the plaintiff sued jointly .the owner and operator of a taxicab in which she was a passenger and the owners of a truck with which the-taxicab collided to recover damages for injuries suffered in the collision. The respective owners of the taxicab and truck were represented by separate counsel. When the case was called for trial, counsel for both defendants announced their defenses would be antagonistic and requested the court to allow them five additional" peremptory challenges. The court being of opinion that it was a matter within its discretion allowed the two sets of defendants five peremptory challenges each. We held this to be reversible error and said:

“We think the court erred in arbitrarily extending the statute. The term ‘each party’ means the two opposing sides to a controversy. Each side or party constitutes one party and is limited to five peremptory challenges. By employing the term ‘whether * * * single or joined’ the opposite parties, though plural, are required to join in the exercise of peremptory challenges. The view expressed here finds accord generally in the cases. Mullery v. Great Northern Ry. Co., 50 Mont. 408, 148 P. 323; Mourison v. Hansen, 128 Conn. 62, 20 A.2d 84, 136 A.L.R. 413; Ferron v. Intermountain Transp. Co., 115 Mont. 388, 143 P.2d 893. For an interesting discussion of the rule relating to peremptory challenges in criminal cases generally, see State v. Compton, 57 N.M. 227, 257 P.2d 915.”

Both sides draw comfort from what we said in the foregoing case, the plaintiffs by reason of the fact that under the situation there existing we confined the separate defendants to a total of five peremptory challenges as between them. The present defendants draw their comfort from the case by pointing out the difference in the situation existing between the parties defendant there and here, arising from the absence of any controversy or conflict between the defendants in the case at bar.

Their counsel point out that while in Morris v. Cartwright the defenses of the two defendants may have been antagonistic to each other, yet neither of them was proceeding against the other in that action as is the case here as between defendants onthe one side and third party defendant on the other. It may be well to quote that portion of the third party practice rule which is pertinent to this discussion: Rule 14, N.M.S.A.1953, § 21-1-1 (14)

When defendant may bring in third party. “Before the service of his answer, a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.”

We see a distinction between the factual situation in Morris v. Cartwright and that shown here. This distinction we think denies that case the analogy by which counsel for plaintiffs seek to draw it to their support. There, the plaintiff proceeded directly against the two defendants. There was no third party defendant involved in Morris v. Cartwright. It wa's brought into the case here on a third party complaint filed by Foutz & Bursum, as codefendants, after they had themselves answered the plaintiffs’ complaint. The plaintiffs had charged that the negligence of defendants, Foutz & Bursum, was the proximate cause of the damage and injury. In their complaint making Southern Union Gas Company a third party defendant, as third party plaintiffs the defendants alleged that the third party defendant’s negligence was the proximate cause of the damage.

The defenses asserted by third party defendant are not against the original plaintiffs but against the third party plaintiffs (the original defendants). No pleading or claim of any kind is asserted by either plaintiffs or third party defendant against the other. Hence, counsel for defendants (third party plaintiffs) aptly inquire:

“How, then, can the appellants say that the third party defendant is opposed to the plaintiff or how can he successfully assert that there is a controversy between these parties when as between them there is no ‘allegation of fact on one side which is denied by the other side’ as the definition of the word controversy is set forth above?”

It is to be noted that in Morris v. Cartwright, supra, we defined the phrase “each party” as used in 1953 Comp. § 19-1-36, to mean “the two opposing sides to a controversy.” While in Morris v. Cartwright there may have been antagonistic defenses between the two defendants yet neither was proceeding against the other in that action. Here, however, in the case at bar, the defendants became third party plaintiffs and could in no sense be deemed co-defendants with the third party defendant. Indeed, the sole controversy with which the third party defendant was connected, viewing the parties as a whole, was between the defendants (third party plaintiffs) and itself, the third party defendant. The latter was making no claim against nor even interested in any controversy with plaintiff. •

We think the case of Ralston v. Toomey, Tex.Civ.App., 246 S.W.2d 308, 309, is so nearly the same as this one on its facts that it should be deemed decisive. Indeed, it does, as we appraise it. In dealing with a like situation, the court said:

“ * * * This court stated the rule in Lofland v. Jackson, 237 S.W. 2d 785, 792: ■

“ ‘The rule is well established that more than one defendant having identical interests and a common defense in a suit constitute but one party. If there is no suggestion of antagonism of interests between defendants found in the pleadings and no adverse issues pleaded by them, they constitute one party and are entitled to Snly six peremptory challenges to the jury panel in the district court. But the rule is different if the pleadings show that one defendant has asked for judgment over against another defendant. The question then to be determined is whether or not there is a conflict of interest between the defendants. In the case of Gussett v. Nueces County, 235 S.W. 857, 861, the Commission of Appeals lays down the following rule: “It is well settled in Texas that each party to a civil suit in a district court shall be entitled to six peremptory challenges, and parties defendant asking judgment over against each other are within the rule. * * * ” ’ ”

In support of their position and proceeding along the same lines as appellees here have argued, in showing that a separate controversy exists between the third party plaintiffs and third party defendant, apart from that between original plaintiff and original defendant, the opinion continued:

“In this case a controversy existed between the appellees Toomey and Crume. Toomey in his third party complaint against his truck driver, Crume, alleged that the negligent acts of Crume, if any, were ‘a breach or violation of a duty owed to’ Toomey. He prayed for full indemnity against Crume for any amount which should be adjudged against him, or, in the alternative, he prayed that he be awarded contribution from the third party defendant for any amount which should be granted the appellants as a result of their suit against him. Thus there was an antagonism of interests between the appellees, since Toomey would be liable to the appellants if it were proved that Crume was guilty of negligence. In that event, if it should also be proved that Crume was guilty of a breach of duty toward Toomey, Crume would be liable to Toomey. Even thoiigh Toomey and Crume had a common interest to defeat the main action in which Toomey was being sued by appellants, there was a separate controversy between Crume and Toomey.” (Emphasis ours.)

Later, 246 S.W.2d on page 310 the court succinctly stated:

“There existed both in the pleadings and in the circumstances of the collision a jury issue of potentially serious significance between Toomey and Crume.”

The only answer the plaintiffs supply to Ralston v. Toomey as an authority is to say that, in Texas, Morris v. Cartwright would have been decided differently from the way we determined it. Such an answer may weaken it as a precedent but it in no manner destroys the rationale of its holding, thus leaving its logic and reasoning unimpaired. We find no error in the allowance to third party defendant of five peremptory challenges in addition to the five such challenges allowed the two codefendants treated as one party to the action. Roberts v. Saunders, 118 N.J.L. 548, 194 A. 1.

This brings us to a consideration of the decisive issue on the appeal, namely, whether the trial court erred in refusing to direct a verdict for the plaintiffs. There was no dispute as to the amounts the respective plaintiffs were entitled to recover against the defendants, if entitled to recover at all. Hence, the issue reduces itself to the simple proposition of whether defendants were guilty of negligence as a matter of law which • proximately caused the damages suffered by plaintiffs’ insured. We shall review the evidence sufficiently to determine whether it presented a jury issue, thereby affording substantial evidence' for the verdict returned.

At the conclusion of all the evidence, counsel for defendants interposed two motions for directed verdict, the second following a denial of the first. It seems appropriate at this time to state title to the real estate on which the house stood was held in joint tenancy, a circumstance which explains, as will later appear, the occasion for the second or alternative motion. The latter motion was put forward on the theory advanced that, since the real estate; was held in joint tenancy, if defendants were found to be guilty of negligence causing the loss and damage, even though the husband of insured should be found to' have been contributorily negligent, his negligence could not be imputed to her as a joint tenant and she then would become, entitled to recover one-half of the amount sued for to such extent as her joint tenancy established an interest. The trial court heard argument and denied both mo-, tions.

Now, for a recitation of the material facts. As already noted, the defendants as contractors for the City were laying sewer pipes on the street on which plaintiffs’ insured lived and were excavating with a power machine a ditch in front-of their premises in which to lay such pipes. While thus engaged in digging the trench along North Auburn Street in Farming-ton, New Mexico, on September 26, 1952, in front of the property in question, the machine struck a gas pipe underneath the street, which was connected with a. gas main containing natural gas from .which such gas was piped directly into the house occupied by plaintiffs’ insured.

The striking of the gas pipe’ by' the trench digger bent the gas line at the point of impact but produced no leak at tüat point. The trench digger struck the gas line about 2:00 o’clock p.m. Mr. and Mrs. Bloomfield, the occupants of the house, were absent from home all afternoon. They returned about 6:30 p.m.' ' Just' before the explosion, their son, Gary, went down to the basement and upon returning stated that he smelled gas. Mrs. Bloomfield informed her husband of the information from the son and asked him 'to check the .furnace. He did so and fofihd the pilot light still burning. He - started into the bathroom and had scarcely arrived there when the explosion occurred at 7:00 p.m.- The working crew had cut off- work for-the day just prior to the explosion. ■ :

To understand the location of the service line struck by the trench digger, one should bear in mind that as originally ihs'talifed it was connected to the gas meter ‘ located near .the • northwest rear corner of the house .and ran thence toward the street in a - straight line alongside the house to a point .alt the northeast corner of the house directly in. front of the premises, then veered off in a southeasterly direction at apprpximately a 45-degree angle across the front line of .the premises to the front property line.. It there entered the street where it. connected with the gas main at a point approximately 20 feet south of where the service line would have reached the gas main if connected or laid in a direct line from the meter to the gas main, as is customarily done.

. That this was a highly unusual place to find ;the gas service line is demonstrated by the testimony of C. M. Trosper, superintendent of this construction job. Among other things, he testified:

“Q. Had you had occasion to locate service lines in that or other streets in connection with that project prior to that morning?

“A. Prior to that morning, yes.

“Q. How were those service lines located ?

' “A. A good deal in the same manner!”

Another unusual situation existed in that the leak, instead of occurring at the point of impact, was located some 50 or 60 feet . from: that, point following the gas line , toward the house where the gas meter, was located. /Immediately after the explosion,- ■ Mr. Bloomfield ran down into the base- • ment and saw some cotton bedding bum- . ing on the floor. The northeast corner of , the house was also afire. In an investigation next morning, the service line was dug up and a crack was found in it at the point where the fire was burning the night before. The crack was large enough to permit gas to escape and get into the house through the sandy soil and cause the explosion. No other leaks were found in the service line. There seemed to be no doubt about the fact that the explosion was *’ caused by gas escaping through this leak.

The service line mentioned had been installed by the owner of the property, himself, through a local plumber who testified as a witness in the case and gave it as his opinion that, considering the amount of displacement in the service line, the impact of the trench digger on the service line caused the leak or crack in it at the northeast corner of the house.

The plaintiffs rely most strongly in 1 claiming they were entitled to a directed verdict on certain admissions made at or before the trial by the defendants and also the memorandum of the pre-trial confer-., ence. The defendants formally admitted:-.

1. That one of their employees, acting in the course of his employment operated the trench digging machine engaged in front of the Bloomfield premises on the afternoon of September 26, 1952.

2. That while so operating the machine it struck a gas service line underneath the street which was connected to a gas main for conveying gas into the Bloomfield house.

3. That no notice was given by defendants or their agents to Bloomfield or Southern Union Gas Company, prior to the explosion, that the gas service line had been hit by said machine.

4. That no specific request was made by defendants or their agents to Southern Union Gas Company, prior to the explosion, to locate or assist in locating the gas service line leading into the house in question.

5. That the defendants or their agents knew, prior to the time the machine struck the gas line, that there was a gas pipe line, ordinarily called a service line, leading from the gas main underneath the street to the house in question, although they did not know the exact location of the service line until it was struck.

6. That prior to the time the service line mentioned was struck by the machine, neither the defendants nor their employees or agents had made any specific request on Southern Union Gas Company to locate the gas pipe line which was later struck.

7. That prior to September 26, 1952, and while engaged in work upon the same construction project, the defendants, or their agents and employees, while operating the same or a similar machine as the trench digger used on this occasion, had struck or snagged other gas pipe lines in the City of Farmington, causing leaks.

On the request for admission of facts, the defendants denied that they “made no attempts themselves to find the location of said gas pipe line, other than to ask J. Vernon Bloomfield, the owner of the property.” However, there is no proof that the defendants did anything further in this behalf than to make an inquiry of the owner of the property as to where the gas service line was located and to be furnished with the information by him that he supposed it continued in a straight line from the gas meter to the gas main. This was customarily true.

It is on these facts, plus an admission by the defendants that after striking the pipe line and prior to the explosion, they gave no notice thereof, either to Mr. and Mrs. Bloomfield, occupants of the house, or to Southern Union Gas Company, that plaintiffs must rest their claim to have the jury instructed as a matter of law that the defendants were negligent and that such negligence caused the explosion and consequent damage.

We have presented the evidence upon which plaintiffs rely to justify their claim of right to an instructed verdict in their favor on the issue of negligence. At the outset of their argument challenging this claim of plaintiffs to a directed verdict in their favor counsel cite a case much like this one on its facts, being an action against the City of Tulsa, Oklahoma, for the burning of a building as result of an explosion from a gas line which the City allegedly had broken in the construction of a utility ditch. In reversing the judgment of the district court which had sustained a motion to dismiss at close of plaintiffs’ evidence, the Supreme Court of Oklahoma in Farmer v. City of Tulsa, Okl., 264 P.2d 299, affirmed the rule so long adhered to in this state, as shown by third paragraph of the syllabus, quoted by counsel, as follows:

“Where minds of reasonable men might differ as to whether evidence adduced by plaintiff is sufficient to show negligence on part of defendant and proximate relationship thereof to injuries complained of, question is one to be resolved by jury.”

We have affirmed this rule in almost identical language time and time again. For a few late cases see Olguin v. Thygesen, 47 N.M. 377, 143 P.2d 585; McMullen v. Ursuline Order of Sisters, 56 N.M. 570, 246 P.2d 1052; .Williams v. City of Hobbs, 56 N.M. 733, 249 P.2d 765; Thompson v. Dale, 59 N.M. 289, 283 P.2d 623. In most, if not all, of the foregoing cases, we reversed the trial court for erroneously having directed a verdict in favor of the defendant. Here, we are asked to reverse the trial. court for not having done that for which in the foregoing cases we reversed it for doing. This is merely mentioned, incidentally, for obviously it can have no bearing on whether the court in the present case should or should not have given a directed verdict for plaintiffs.

Admittedly, as already indicated, the gas service line was found to be in a highly unusual and irregular place, about 20 feet south of where under normal conditions, one might have been expected to find it. Asked whether he had ever found other such instances, C. M. Trosper, construction superintendent on the job, testified: “I don’t recall of any, no sir, not right off hand. I think there were some though.”

Another factor, presenting an unusual feature arose on the fact that ordinarily when a service line was snagged by the trench digger, as in this instance, if a leak occurred, it would be at or in the immediate vicinity of the point of impact where the pipe was exposed; whereas in this instance, possibly due to circumstances presently to be mentioned, the leak was some 50 or 60 feet removed from the point of impact. It was the first time in Trosper’s experience he had ever found a leak so far removed from point of impact. Touching this phase of the situation, he testified:

“Q. Well, now, was it your practice only to examine that part of the pipe that was exposed to see whether there was a leak there?

“A. Well, ordinarily that would, be-the part you would expect to be damaged and we, naturally that is exposed and that is what you examine, yes, sir.”

When the service line was struck and in accordance with usual practice, the pipe was examined in both directions for leaks. The test was made by applying torches or struck matches to the exposed pipe. Finding no leaks, the digging of the trench was continued. Trosper testified:

“A. * * * In this case, I personally examined the pipe and saw that there was no fracture in the pipe in that immediate part that was exposed, and therefore we went on about our work, thinking that everything was okay.”

Another factor in evidence which might be deemed to have some bearing on the question of defendants’ negligence, or the want of it, arose on the testimony concerning the manner in which the connections were made in the service line leading from the front property line to the gas meter. By reason of the 45-degree turn at northeast corner of the house, it became necessary to install a joint in the pipe at point of the turn. The type of connection or joint used by Bloomfield’s plumber in installing the joint constituted a weak link in the service line, rendering it • more susceptible to damage at that particular point, when exposed to strain, than would have been the case if the service line had bedn laid and constructed in the customary manner. Counsel for defendants argue strongly that no one could be expected to foresee these unusual situations and condition's. The trial court whs entitled, they say, to consider the question of whether defendants were negligent in the light of these conditions. ‘ ' ¡

At the time of the accident, the. operatpr of the trench digger was proceeding at only one-third of normal speed, the lowest speed at which it could be operated and kept in motion. This, notwithstanding the fact that if the service line had been located where Bloomfield thought it was and so informed the work crew, and as customarily such lines were laid, i.e., in a straight line from the gas meter to the main gas line, they would have been justified in operating the machine at full speed ahead for some 20 feet north before slowing down for the service line. ' ■ ■<

Another circumstance having some significance appears. Shortly before ascertaining from Bloomfield the, location of the service line, the defendants’ construction superintendent asked him .for location of the water line and he correctly pointed out exactly where it proved to be and the machine did not strike the. water line. Is it any wonder, inquire counsel, that after having verified his information as.to location of the water line, ,the¡ cr.ew may have-felt justified in relying on. his, statement as to where he. believed the gas service line to be? To say the least, say counsel, the jury were entitled sto consider this, circumstance along with others in passing upon the question whether defendants were negligent.

1 As a matter of common practice, before commencing . digging ■ operations the de-. fendants in endeavoring to locate 'service, lines ordinarily employed two methods: (1) by asking Southern Union Gas Company' to help in the location of the service line; of, (2) through inquiries of the property' owners. In this instance, they pursued the latter, and a common practice, by inquiry of the property owner. Hence, when : Mr. Bloomfield told Trosper he-thought the line was directly in front of the gas meter, the latter naturally believed this to be correct because that was the place where such lines were usually found. In this connection, Trosper testified:

“Q. Then why did you assume that the line was where Mr. Bloomfield assumed it was?

“A. Being where the gas meter is or was, it is reasonably certain that that would be where the line would be, and that is what we took into consideration in our operations.”

. An effort was made through cross-examination of Trosper to show that other methods should have been employed to locate the service line even, to the point ofr putting questions suggesting the ditch., could have been dug by hand, using pick and shovel methods. ' The. only time stich method was resorted to, it appeared, was. when the power driven trench digger" neared the established location of a serv.-ice line, it was resorted to as an extra pre-: caution against damage. The testimony' disclosed, however, that the utility com-, pany was not always correct in locating; such lines and made its share of mistakes-' in pointing out supposed locations. It was,' also disclosed that scientific and mechani-cal devices to locate lines were not always-helpful, one of them the “Doodlebug” on occasions “going in every direction.” This, was due to the presence of so many old,, dead lines under the streets, of which there were many in Farmington.

The witness, Trosper, further testified as to the practice of defendants where a pipe' was struck. After examining a struck' line, if there were leaks, the practice was’ to notify the utility company ,at once. If no leaks were found, and, hence, no gas was escaping, something usually ascertained by applying fire to a given area around point of impact, quite naturally the. practice was to assume the line had not been injured and trench digging was continued. On occasions, however, after examining a struck line, even though no gas was escaping, they would notify the gas company, since there would occasionally be a stoppage of gas flowing through, if the pipe had become “kinked up.”

Ordinarily, a mere bend in the pipe was not reported. The striking of the pipe here had resulted in bending it at the point of impact. To sum up testimony on the practice in this particular, such reports were made when fractures were detected, stoppages in gas flow were found, or where gas was actually found to be escaping. In the instant case, however, after one of the workmen had exposed the pipe with a hand shovel in the area of the point of impact, there was no evidence of a fracture in the pipe, no gas was found to be escaping and the torch test indicated none, and, obviously there was no stoppage of the flow. Furthermore, there was nothing to indicate a fracture might have occurred some 60 feet removed from the bend in the pipe. Incidentally, one of the workmen of long experience had seen pipe bent as much as two feet without causing a fracture.

Actually, the workmen were not positive, aftetf examining the pipe at this point, but that they had struck a dead line, of which there were many in Farmington. Accordingly, from that point on they cautiously removed only about a foot of the top soil with the machine, while the hand diggers dug around the place where the service line was supposed to be, according to Bloomfield, with hand shovels. Eaves, the oiler on the job, did not believe conditions indicated a break elsewhere in the service line, or that any damage, other than a slight bend in the pipe at the point of impact, had resulted. In fact, neither Eaves, nor Trosper knew the line struck was a utility line. Had they so believed, they would forthwith have notified Southern Union Gas Company, as a standard practice and custom on this job.

While the witness, Trosper, was perhaps the most important one for defendant, being construction superintendent with more than ten years experience in this line of work, his testimony was corroborated in material respects by Eaves, the oiler on the job, and by Little, operator of the power machine. We have considered the material facts in the case as they and other witnesses presented them in evidence. Strangely, there is not too much dispute between the parties when it comes to the material facts. This is evidenced by the number of formal admissions by defendants dictated into the record and set out in the early portion of our opinion.

Unfortunately, we do not have a former decision to serve as precedent for our aid in resolving the decisive issue on the facts. The case of Snider v. Town of Silver City, 56 N.M. 603, 247 P.2d 178, perhaps comes nearer to this one on its facts than any other called to our attention. But aside from' being an action in which damages are , sought by reason of a gas explosion, resulting from gas escaping through a leak in a snagged pipe, it furnishes but little aid.

Our major problem is to determine whether under the testimony as we have reviewed it, the court would have been warranted in taking the case from the jury and ruling as a matter of law that the defendants were guilty of actionable negligence. We can give but a single answer and that is that it would have been error for the court so to rule. Obviously, under all the evidence and proper inferences flowing therefrom, reasonable minds would differ on whether there was negligence on the part of defendants.

Indeed, in the particular pleaded and as to which most of the evidence was adduced, namely, that in operating the motor powered trench digger, the defendants “negligently caused said machine to strike a gas pipe underneath said street” on which the machine was being operated, there obviously was an issue of fact on the question of defendants’ negligence.

As to another ground of negligence, viz., failure to notify Southern Union Gas Company, promptly, of the striking of the pipe, a specification of negligence which defendants did not consider of importance enough to plead, yet which was made an issue in the proof and argued here, the question is narrower on whether there was enough evidence to go to the jury. Nevertheless, even as to negligence in that particular, which becomes less important in view of the jury’s finding there was no negligence in the basic particular charged, we think it could not be said as a matter of law that the defendants were negligent.

So much for the claim of plaintiffs that there was not sufficient evidence to go to the jury upon the issue of defendants’ negligence. It would have been error for the trial court to instruct the jury the defendants were negligent as a matter of law. But, say their counsel, even if they were negligent, such negligence was rendered innocuous and neutralized by contributory megligence on the part of one of the owners and occupants of the house belonging to J. V. Bloomfield and wife, as joint tenants, which the broken gas line served. That negligence was said to arise on information given defendants’ work crew by J. V. Bloomfield as to location of the gas service line. It is claimed misinformation was said to have been given C. M. Trosper, Superintendent for defendants, Foutz and Bursum, the morning of the explosion as to location of the gas service line. It was in evidence that defendants ordinarily employed two methods of ascertaining location of gas service line before excavating along a particular property line, viz., either from the property owner himself or by inquiry,of the .gas company. In this instance the former method was chosen.

■It was near the noon hour when defend- • ants arrived in front of the Bloomfield property with their ditch digging equipment. So near in fact, that Mr. Bloomfield-had reached home for his noon luncheon shortly, following arrival of the work crew at his property. As soon as he arrived Superintendent Trosper asked him whether he could show him where the water and gas lines came into his property. Mr. Bloomfield replied by stating that he knew where the water line was and he proceeded to show him exactly where it was, as was later found to be the case, according to markings made on the ground at the time it was pointed out by Bloomfield.

Thereupon, the latter was asked where the gas service line was and, leading Trosper to the rear of the house where his gas meter was located, which he pointed out, Bloomfield said, according to Trosper:

“I assume it runs right along the north part of the house.” (Emphasis ours).

and according to Bloomfield himself:

“A. I stated the meter was at the north side of the house and I guess the line must come out there, out straight from the meter. I didn’t say it did I said T guess.’

“Q. You are sure you used the word ‘guess’?

“A. Yes, sir.”

It is on such testimony as this that defendants seek to make out a case of contributory negligence on the part of Bloom-, field and to impute same to his wife as a joint tenant in the ownership of the property in question. But it is totally inadequate for the purpose invoked. The very sequence of his answers sufficed to apprise defendants that he was ignorant of the location of the gas line. He answered as to-the water line first. He “knew” where it was located. But when immediately thereafter he was asked where the gas service line was he could only “assume,” according to Trosper, or “guess,” as Bloomfield testified, where it was located. Truly, actionable negligence, primary or contributory,' could not rest on a word, whichever was used, so uncertain and indefinite as to be meaningless.

Contributory negligence in another parr ticular, not pleaded but litigated, perhaps, arises on the theory that Bloomfield having installed his own service line through a a local plumber some years earlier was responsible for a weak link therein, by necessitating use of a joint in the line in a departure from a straight line in reaching the gas main. Whether properly raised or not the claim is wholly without merit. The service line was made to convey a gaseous substance only, not to withstand the pressure of a power shovel.

The conclusion that there was no contributory negligence places the trial court in error, of course, in submitting that issue. The defendants as appellees seek to avoid effect of the error by denying defendants benefit of it through their failure to request special interrogatories, so that it could be ascertained whether the verdict for defendants rests on a finding of no negligence on their part, or contributory negligence on Bloomfield’s part. The giving of special interrogatories is discretionary with the trial court, subject to review for abuse. Larsen v. Bliss, 43 N.M. 265, 91 P.2d 811; Crocker v. Johnston, 43 N.M. 469, 95 P.2d 214. If a proper case for them, the defendants were privileged to the same extent as plaintiffs to make a request therefor. We think the trial court erred in submitting the issue of contributory negligence and the failure of plaintiffs to request special interrogatories does not deny them benefit of the error.

Our holding there was not sufficient evidence as a matter of law to warrant submission of the issue of contributory negligence on the part of Bloomfield, the husband, naturally, removes from the case necessity for determining whether his contributory negligence, if found by the jury to exist, would be imputed to his wife. She, along with him, owned the premises involved in joint tenancy, and the issue mentioned was presented' and argued with much earnestness pro and con by counsel for the respective parties. Since we conclude there was no evidence of contributory negligence, we find no occasion to express a view on the question.

We might with good reason close our opinion at this point but in view of the possibility of another trial of the case, we may with some justification say something as to a few claims of error presented and possibly avoid the occasion for a second appeal. One such claim of error is that the trial court erred in giving its instruction No. 5, reading:

“You are instructed that in this case the plaintiffs were assignees of Mr. Bloomfield and this suit is not being conducted by Mr. Bloomfield; that he has no interest in the outcome; and that if the plaintiffs should be sue-' cessful in recovering, that anything they may recover will be theirs and Mr. Bloomfield will have no right to any part of such recovery.”

We agree with counsel for plaintiffs that this instruction should not halve been given. Counsel for defendants say it was harmless by reason of Instruction No. 6 immediately following which they quote. Among other things, it tells1 the jury the plaintiffs are subrogated to all the rights of the Bloomfields, their respective insured, and have the same rights to recover as if the Bloomfields themseliles were suing, etc. The giving of this instruction only serves to point out the impropriety of giving the earlier one. ' It could only emphasize in the jury’s mind the fact that the Bloomfields had the money for their loss and, accordingly, were out of the picture. The giving of instruction No. 5 was prejudicial error.

Complaint also is made under this point by reason of certain argument said, to be inflammatory and prejudicial relative to insurance companies searching their policies after paying a loss for “fine print” provisos to find some means of recovering back money they had paid out for which-they had received premiums, etc. The trial, court, observing defense counsel was about to rise as if to object, of its own motion, gave the jury an admonitory instruction on the subject by requesting counsel to con-., fine himself to the evidence. Of course, argument such as this was improper and should not have been countenanced. If persisted in, it easily could warrant the declaration .of a mistrial. But there was no ipotion for such action by the trial court and it is not likely this will occur again on a retrial.

The plaintiffs complain and rightly of the submission of the issue of unavoid-. able accident. It could only serve to detract the minds of the jurors from the true and basic issue of negligence or not on the. part of. defendants. It was error to sub- - mit the issue. Compare Frei v. Brownlee, "56 N.M. 677, 248. P.2d 671.

What we have already said renders it unnecessary to consider the two remaining claims of error. It follows from what we have said that the judgment reviewed must be reversed and the cause remanded with a direction to the trial court to set the judgment aside and award the plaintiffs a new trial. The plaintiffs shall have their costs.

It is so ordered.

COMPTON, C. J., and LUJAN and McGHEE, JJ., concur. KIKER, J., dissenting.