(dissenting).
I am unable to agree with the majority that there is sufficient evidence in the record to support the finding a gas detector machine was in general use in the sewer construction or pipe line industry. Perhaps we should first determine the burden and quantum of proof which one asserting the right to enforce the 50% penalty for failure to furnish a safety device in general! use must meet in order to sustain a judgment in his behalf
The applicable part of the safety device statute, sec. 57-907, 1941 Comp., reads:
“ * * * In case an injury to, or death of, a workman results from the failure of the employer to provide the safety devices required by law, or in any industry in which safety devices are not provided by statute, if an injury to, or death of, a workman results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the workman, then the compensation otherwise payable under this act * * * shall be increased by fifty per centum (50%). * * *” (Emphasis mine.)
The industry in which the employer was engaged was the sewer construction industry. Undoubtedly the explosion and resulting death of the workman was caused by the ignition of gas which had entered the sewer line inside of which the workman was engaged in caulking the joints. It was his work inside of the pipe which placed him where he was killed by the explosion.
The statute quoted above specifies a safety device “in general use” in the industry, absent a statutory safety device, as is the case here.
This safety device statute is new in the field of workmen’s compensation acts. New Mexico seems to be the pioneer state in the field, and decisions from other states are of little help.
In Jones v. International Minerals & Chemical Corp., 1949, 53 N.M. 127, 202 P. 2d 1080, we had the claim by the claimant that the use of a certain type of improved electrical switch by one potash mine and refinery would have prevented the starting of the machinery and the resulting death of the workman. It is true we were there dealing with a statutory safety device, but the claim was made such improved switch was in general use in the potash industry. We said aside from the the statute the use by one company where three potash companies were operating in the Carlsbad potash basin did not constitute general use.
In Flippo v. Martin, 1948, 52 N.M. 402, 200 P.2d 366, the penalty was claimed because of the failure of the employer to furnish clamps for the cable used in drilling a water well instead of a rope which broke, as a result of which the workman’s body became entangled in the cable, causing his injury. The claim was made that such a clamp would have prevented the injury, and that it was a reasonable safety device in general use in the water-well drilling industry in Eddy County. The jury found in favor of the claimant on such issue, and we held the evidence was sufficient to support the finding. It is a matter of common knowledge there were a great many oil wells drilled in the vicinity of the water well, but the case turned on general use of a reasonable safety device in the water-well drilling industry, and the evidence was sufficient to prove such device was furnished by a majority of the drillers of water wells in Eddy County.
In Wright v. Schultz, 1951, 55 N.M. 261, 231 P.2d 937, the workman claimed his fall down an elevator shaft was caused by the failure of the employer to barricade the door to the shaft or to floor the shaft while he was sanding the inside of the elevator door preparatory to painting it. The claim was made that such barricade and floor coverings were reasonable safety devices in general use in Albuquerque while workmen were engaged in and around such shafts. We held that although there were only a few buildings in Albuquerque equipped with elevators, the proof was sufficient to show such general use in the painting or construction industry while workmen were engaged in and around elevator shafts. As the author of the opinion I was concerned with whether the testimony showed such devices were used by a majority of the contractors, in such industries, and concluded that it did. I was concerned with the same point in the Flippo case, supra, and made the same decision.
What does general use mean? Webster’s New International Dictionary, 2d Ed., p. 1043, defines “general” as follows:
“5. Pertaining to, * * * many, or the greatest number of, persons, cases, or occasions; prevalent; usual ; extensive; * *
The only cases I find on the term “general use” in Words and Phrases are Brooklyn Church Soc., etc. v. Brooklyn F. K. Soc., Sup.1914, 152 N.Y.S. 41, 44, and our case of Jones v. International Minerals & Chemical Corp., supra. On “general usage” I find United States v. Stanolind Crude .Oil Purchasing Co., 10 Cir., 1940, 113 F.2d 194, 200, and Codd v. Westchester Fire Ins. Co., 1942, 14 Wash.2d 600, 128 P.2d 968.
In the Brooklyn Church case use of buildings was granted for a kindergarten school until such time as kindergarten schools were generally adopted as a part of the school system of the city. It was held that equipping 75% of the school buildings was a general adoption.
In United States v. Stanolind Crude Oil Purchasing Co., supra, the court, speaking through Judge Phillips, said, 113 F.2d at page 200:
“A usage is a mode of dealing generally observed in a particular trade. A usage universally recognized and observed by those engaged in a particular trade throughout a state is a general usage. While it must be generally recognized by those engaged in the trade, it need not be observed in every individual transaction in order to be general.”
The Washington case involved the admission of evidence and cited and followed the rule of the Stanolind case.
It seems to me the terms “general use” and “general usage” mean the same thing.
■ I believe one trying to enforce the penalty clause of our Workmen’s Compensation Act, supra, for a nonstatutory safety device has the burden of establishing by a preponderance of the evidence, as this term is defined in New Mexico law, that the injury was caused by failure of the employer to furnish a reasonable safety device furnished by a majority of those engaged in the industry in the section in which the work is prosecuted.
The proof in support of the general use of the gas detector was that it was used by the gas company when it was working in and around mains where gas was thought or known to be present, and the superintendent of the gas company knew of one sewer contractor who had such devices. It was further shown they are used by the telephone company when manholes in its established conduits are opened on city streets for work at the manhole. There was no proof whatsoever as to the number of sewer contractors using the device on closed or open trench work, except one witness who knew of one such contractor, or respecting usage by pipe line contractors or operators in Albuquerque or anywhere else. In fact, a number of local contractors engaged in such work testified they had never used such devices or known of their use in New Mexico; that if gas was detected or smelled they called the gas company which brought the devices to the job and cleaned up the situation.
We think the following testimony of the witness Martin as to the availability of these gas detectors is very significant on the issue of their general use. We quote from his testimony taken from the majority opinion:
“Q. Now, Mr. Nohl has asked you in regard to this indicator, whether the same is available to contractors generally? A. They can be purchased. They are not readily available as the instrument is hard to get.”
I venture the suggestion that articles in general use are not hard to get.
Without proof of the number of contractors or municipalities engaged in such work or industry, in the state or in and around Albuquerque, use of the machine by the gas company, one sewer contractor and the telephone company when opening manholes to conduits long closed is held to be sufficient evidence of general use in the industry, aided by the statement doubts are resolved in favor of the judgment, and this in the face of what I deem to be overwhelming testimony that such a machine was not in general use in New Mexico.
I agree the evidence would support a verdict for negligence in failing to supply the gas detector absent our Workmen’s Compensation Act, Sec. 57-901 et seq., 1941 Comp., which provides the exclusive remedy, and it is my belief that because of such negligence the judgment under the penalty clause of the Workmen’s Compensation Act has been affirmed.
The net effect of the majority opinion is that some use of a safety device constitutes general use — common understanding, the dictionaries and court decisions to the contrary notwithstanding. The platitudes in the majority opinion about the baby learning to walk and the lawyer proving his case step by step are not in my opinion sufficient substitutes for the proof that should be in the record to justify an affirmance.
I dissent.
WALDO H. ROGERS, D. J., concurs.