It is asserted by appellant that the district court erroneously assumed that the allegations of negligence in paragraph 5 of the complaint, to which we have referred in the original opinion, were general when in fact they were not; that it also appears that appellee and the court tried the case upon the assumption that his general allegation of negligence in paragraph 6 of his complaint was an allegation of proximate cause only; that here he strenuously contends that his general allegations of negligence are contained in paragraph 5 of his complaint, and does not claim that paragraph 6 contains such general allegations; that the trial court was of like opinion.
The theory upon which the case was tried in the district court was that the complaint charged negligence generally. This appears from the evidence and from paragraph 6 of the court's instructions, and is so admitted by appellant in its brief (p. 29).
It is a little difficult to determine just what construction the trial court placed upon the pleadings. He gave to the jury the following instruction:
"By the pleadings in the case and admissions on the trial, the issues are narrowed to three, as follows:
"(1) Whether the defendant suffered its wires charged with electricity to be and *Page 498 remain in contact with the wires of the fence, and that it did so carelessly, and negligently.
"(2) Whether such negligence, if it existed, was the proximate cause of the death of Corina Mares; and
"(3) The damage, if any, suffered by the beneficiaries of this proceeding, as hereinafter defined."
This instruction indicates that appellant's view regarding the court's construction of paragraph 5 of the complaint is correct. However, the court refused to give appellant's requested instruction No. 6, as follows:
"The whole basis of this action is the claimed negligence of the defendant in suffering the wire charged with electricity to be and remain in contact with the wires of the fence for an unreasonable length of time after it knew or should have known of such contact.
"Before you can return a verdict for the plaintiff you must find, from a preponderance of the evidence, that the defendant company was negligent in the manner stated in the complaint — that is, that it suffered the wire to be and remain in contact with the wires of the fence for an unreasonable length of time after it knew or should have known of such contact, and that said negligence was a direct and proximate cause of the death of Corina Mares."
But instead gave to the jury an instruction upon general negligence, as follows:
"If you find from a preponderance of the evidence in this case that the defendant was negligent in the construction or operation or maintenance of its said electric plant and lines, so that as a proximate result of such negligence the said electric wire came in contact with said fence and being and remaining in contact therewith was the proximate cause of the death of the said Corina Mares, then your verdict should be for the plaintiff in such sum as you may determine he is entitled to under other instructions given by the court; but, on the other hand, if you do not believe that the defendant was negligent in the construction, operation or maintenance of its said plant and lines and that the death of the said Corina Mares resulted proximately therefrom, then your verdict should be for the defendant."
It must be assumed from this instruction that the court viewed the pleadings as containing a charge of general negligence; and the fact that he refused appellant's requested instruction No. 6, which conformed with paragraph 5 of the complaint, indicates that he was not relying entirely on paragraph 5 of the instructions for the charges of general negligence, notwithstanding paragraph 4 of his instruction would seem to so indicate.
Paragraph 4 is an unnecessary, though proper, instruction. We find nothing in it harmful to appellant. Under such circumstances the instruction if erroneous is not a ground for reversal. Territory v. Gallegos, 17 N.M. 409, 130 P. 245; Spencer v. Gross Kelly Co., 22 N.M. 426, 163 P. 1087; 5 C.J.S. title Appeal and Error, § 1763. *Page 499
But if the court's instruction was correct his reasons for giving it are immaterial. Roth v. Scruggs, 214 Ala. 32,106 So. 182; McStay v. Citizens' Nat. Trust Savings Bank, 5 Cal. App. 2d 595, 43 P.2d 560; Caldwell v. City of New York Ins. Co., Mo. App., 245 S.W. 602. In Narvaiz v. S.F., N.W. Ry. Co., 35 N.M. 303, 296 P. 575, we held that a correct judgment would not be reversed because the court based it upon erroneous grounds. In that case we cited with approval Cork v. Lehigh Valley R. Co.,98 N.J.L. 143, 119 A. 88, in which it was held that though a ruling on a motion for a directed verdict rested upon fallacious grounds, it was not reversible error if the instruction was justified on any other ground stated in the motion.
We will not reverse a judgment because the trial court's reasons for giving a correct instruction were fallacious; though we do not hold they were in this case.
The fact that appellee had overlooked the allegations in paragraph 6 of his complaint in presenting his case to this court, is no reason or justification for holding that the trial court erred, when in truth his instruction submitted the proper issue to the jury. The burden here is upon appellant to establish that the trial court erred, and this cannot be accomplished by a contention that appellee has overlooked some point favorable to him.
In Hepp v. Quickel Auto Supply Co., 37 N.M. 525, 25 P.2d 197, the assignment of error was "the evidence offered by plaintiff was sufficient to support a verdict in her favor."
In support of this appellant argued that the rule res ipsa loquitur was applicable, not that there was affirmative evidence of negligence. But we held that the assignment should be sustained notwithstanding the appellant's reasons therefor were fallacious, as there was sufficient evidence of negligence to require the case to be submitted to the jury.
The instructions of the court regarding the rule res ipsa loquitur were correct; and we think it is immaterial if the court and the appellee erroneously assumed it was authorized under one paragraph of the complaint, if in fact it was authorized at all, and we have held that it was. In other words it was immaterial how the court arrived at the conclusion that negligence generally was pleaded, if in truth it was.
We have carefully re-examined the evidence supporting an inference of negligence arising from the rule res ipsa loquitur, and do not find as a matter of law, that it was balanced or overcome by appellant's evidence. It was an issue for the jury and not this court to settle.
Appellant complains that our decision imposes on it "restrictions inconsistent with the practical operation of its business and to make it, in effect, an insurer against any accident."
It was not our intention to use language that could be so construed, and *Page 500 think it is not open to this criticism. We adhere to the language used, but that there may be no mistake, we add that while power lines are dangerous agencies and reasonable care (which necessarily is a high degree of care) must be exercised in their construction and operation, particularly when such lines are built along streets and highways; yet the convenience of the public requires their operation; and the degree of care required does not go to the extent of defeating a practical operation of power systems, nor to making the owners insurers against injuries caused by their operation.
It is contended that this court erred in failing to apply the rule, "that where an objection to testimony is once made and ruled on and the testimony erroneously admitted, the objection need not be repeated as to testimony of the same class." We stated in our original opinion that the objections made to the introduction of the testimony in question, were in general terms, except in one instance, and that the testimony admitted in that instance was not prejudicial, even if erroneously admitted. If we were in error regarding the appellant's objections to this testimony, it will not change the result.
The testimony elicited by the cross examination complained of as it appears on pages 120, 121, 126, 167 and 168 of the transcript referred to by appellant, was in substance that the witness did not know of a place on appellant's lines where the wires were "wrapped around each other;" that the lines at places ran through trees, but a path was cut for them; that one pole in the line was leaning at a considerable angle, and out of line with the others; that another pole "leans a little, but not much." It was rather to appellant's advantage that only two posts could be found out of perfect alignment in its power lines.
If it was error to admit this testimony, it was only technically so, as it is of a trivial character and could not have changed the result. The case will not be reversed on that account. Palatine Insurance Co. v. Santa Fe Mercantile Co.,13 N.M. 241, 82 P. 363.
The motion for a rehearing will be overruled.
It is so ordered.
HUDSPETH, C.J., and SADLER, BICKLEY, and ZINN, JJ., concur.