concurring in part and dissenting in part.
I concur with Point II of the majority opinion on strict liability and otherwise I dissent.
A. Rule 56(c) which relates to summary judgment should be amended by the Supreme Court.
Unfortunately, the Supreme Court has not issued an order nor amended Rule 56(c) of the Rules of Civil Procedure to require trial courts to make findings, state specific reasons or explain the basis upon which summary judgments are granted. See, Combs v. Fantastic Homes, Inc., 584 S.W.2d 340 (Tex.Civ.App.1979). Indictments against the model form of summary judgment were issued over a third of a century ago but district courts generally defeat the prosecution of the indictments.
Trial judges refuse to disclose the basis upon which their actions are taken with knowledge that summary judgment is a lethal weapon, applicable only when the claims made are groundless. Great care should be exercised in granting such judgments, mindful of its aims and targets and beware of overkill in their use. Wisely used, summary judgment is a praiseworthy time-saving device. Although prompt dispatch of judicial business is a virtue, it is not the sole nor primary purpose for which courts were established. An excuse for summary judgment has always been that they save time but denial of a trial on disputed facts is worse then delay. Heavy burdens due to excessive litigation may be lessened in district courts, but in an appeal, time, energy and work are wasted. Summary judgments are almost uniformly reversed.
The instant case is a shining example. The trial court granted summary judgment summarily. The necessary proverbial statement that there was “no genuine issue as to any material fact” was omitted. Rule 56(c) of the Rules of Civil Procedure. Plaintiff’s complaint was dismissed with prejudice. On this basis alone, the summary judgment should be reversed and remanded. To hold otherwise would convert an appellate court into a trial court. This Court is not, and must not be, a trial court. Such a court has a duty more difficult and more important than ours. We begin our task where it leaves off.
Rule 56(c) should be amended by the Supreme Court.
B. Defendants should be bound by admissions made on appeal.
Plaintiff sued defendants on three counts: (1) negligence, (2) reckless and wanton conduct, and (3) creating a dangerous crossing. One of defendants’ defenses was contributory negligence. Defendants’ Answer Brief states:
All five points are answered herein by simply acknowledging that for the purposes of this appeal a lone the defendants are presumed to have been negligent The question of whether the defendants were negligent is not, however, the issue before this Court The issue is “Was the plaintiff, Ramon Ruiz, contributorily [sic] negligent as a matter of law and thereby precluded from recovery against the defendants, negligent or not?” Such alleged negligence is specifically denied and only admitted arguendo, for purposes of this appeal. [Emphasis added.]
In this appeal, defendants play the part of “Dr. Jekyll” in the trial court and “Mr. Hyde” up here. In the trial court, defendants claimed they were free of negligence and causation. No genuine issue as to these material facts was found by the court. In this appeal, defendants want us to presume that they were negligent. This means that we are allowed to draw inferences from facts and circumstances in the case which induce us to believe that defendants were in fact negligent. If this inducement is correct, defendants were rather persuasive in the trial court to obtain a dismissal with prejudice.
Such presumptions are rare indeed if defendants concede the crucial issue upon which their liability rests. After reversal and remand for trial in accordance with the majority opinion, defendants should not play the part of Houdini to escape liability once again. Despite this dissenting opinion that favors defendants under New Mexico law, defendants should not try to convince the trial court with incisive argument that defendants are free of negligence and proximate cause. These issues should be questions of fact for the jury. If defendants seek summary judgment again, a directed verdict or judgment notwithstanding the verdict, such motions should be summarily denied.
Procedural problems of this nature would not arise if the parties would request the trial court to specify each basis, and the reasons therefore, upon which summary judgment is granted, and the trial court complied with the request.
C. Defendants are entitled to summary judgment as a matter of law.
The parties have overlooked a case directly in point. Candelaria v. A., T. & S. F. R’y Co., 6 N.M. 266, 27 P. 497 (1891). Here, in Albuquerque, a former public road existed from time immemorial, which the railroad company, in the construction of its road, had not restored. A long distance south of the depot was a regular crossing both for vehicles and persons over the tracks upon a street called “Coal Avenue.” Both employees and other persons were in the habit of crossing over the railroad tracks wherever they saw fit, without any regard to regular crossings. There were cars frequently standing on the tracks and foot passengers crossed over wherever they could get through between the cars. Plaintiff went across the railroad on business of his own, and while upon the main line walking north, he was struck by an engine and train of 24 cars, knocked from the track and injured. The trial court directed a verdict for the railroad which was affirmed on appeal. The court said:
Can it be contended that because persons were in the habit of crossing over the tracks wherever they pleased, without regard to the regular crossings (and for a long distance up and down the tracks this was done), this-fact would constitute a legal right for them to be upon the tracks of the defendant? We think not * * * * [H]e chose to go upon the tracks of the defendant for his own convenience, and in so doing he assumed the risk of his own conduct and became a trespasser, in contemplation of law. [Id. 270-271, 27 P. 497.]
* * * The plaintiff in this case being upon the track, using it for his own purposes as a public highway, the defendant did not owe him the duty of doing acts to facilitate his trespass or to render it safe
We think that the law is well settled that a railroad company is only liable, in the case of the trespasser who has been killed or injured by its trains, for the negligence of the defendant’s servants after the trespasser’s presence upon the track has been discovered. The facts in this case present no such conduct as would constitute negligence on the part of the defendant after plaintiff’s presence was discovered. But suppose the defendant’s servants to have been guilty of some degree of negligence, still the plaintiff is not entitled to recover, if he was guilty of contributory negligence. * * * [Id. 273-274, 27 P. 497.]
It has been repeatedly held on the highest authority that a person crossing a railroad track at the regular, recognized crossing is compelled to use his senses both of sight and hearing for his own protection; and if he fails to do so, and is injured, he is guilty of negligence that will defeat a recovery by him. * * * [A] person walking upon the track of the railroad company without authority, and using it for a public highway, is held to a much higher degree of diligence, and takes a greater risk than he who crosses the track at a regular crossing * * * * “[T]he failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. * * *” [Id. 275-276, 27 P. 497.]
* * * * * *
The law as stated in the above decisions is the well settled law of this country, as declared by the courts of the United States, as well as by the weight of a long line of decisions in the courts of the different states. It is useless to continue the citation of cases wherein it is held that a person crossing a track of a railroad company must use his senses, both of sight and hearing, and any other reasonable care for his own protection, and if he does not do so he is guilty of contributory negligence and cannot recover, although there may have been negligence in some degree on the part of the defendant; and also that, in the case of the trespasser upon the track, a much higher degree of care must be used. [Id. 278, 27 P. 497.] [All emphasis added.]
See, Annot. Liability of railroad to adult pedestrian attempting to pass over, under, or between cars obstructing crossing, 27 A.L.R.2d 369 (1953).
Heller v. New York, N. H. & H. R. Co., 265 F. 192, 194 (2nd Cir. 1920) defines “trespasser” as follows:
Every unauthorized entry on another’s property is a trespass and any person who makes such an entry is a trespasser. A trespasser is one who goes upon the premises of another without invitation, express or implied, and does so out of curiosity, or for his own purposes or convenience, and not in the performance of any duty to such owner.
Ruiz was a trespasser. Candelaria remains the law of New Mexico. A review of the following railroad cases does not alter this law and, in some respects, supports it: Price v. Pecos Val. & N.E. Ry. Co., 15 N.M. 348, 110 P. 565 (1910); Padilla v. Atchison, T. & S. F. Ry. Co., 16 N.M. 576, 120 P. 724 (1911); Morehead v. A., T. & S. F. Ry. Co., 27 N.M. 349, 201 P. 1048 (1921); Vigil v. Atchison, T. & S. F. Ry. Co., 28 N.M. 581, 215 P. 971 (1923); Sandoval v. Atchison, T. & S. F. Ry. Co., 30 N.M. 343, 233 P. 840 (1925); Blewett v. Barnes, 62 N.M. 300, 309 P.2d 976 (1957); Apodaca v. Atchison, Topeka and Santa Fe Railroad, 67 N.M. 227, 354 P.2d 524 (1960); Landers v. Atchison, Topeka & Santa Fe Railway Co., 68 N.M. 130, 359 P.2d 522 (1961), and Landers v. Atchison, Topeka & Santa Fe Railway Co., 73 N.M. 131, 386 P.2d 46 (1963).
Defendants are entitled to summary judgment as a matter of law because defendants, not having discovered the presence of plaintiff on their railroad tracks before his injury, owed no duty to plaintiff. If defendants were negligent in some way, plaintiff was contributorily negligent as a matter of law.
I reluctantly dissent on this point because Candelaria stands alone. It represents the judicial thought of the late 19th and early 20th century. Whether it should be reconsidered is not the duty of this Court.
Nevertheless, it is important to discuss other points raised in the majority opinion and by plaintiff.
D. The doctrine of comparative negligence is not applicable upon reversal of this case for trial.
Judge Walters’ opinion, page 413, states:
Defendants correctly surmise that if this case be reversed for trial it will be tried under principles of comparative negligence because trial will commence after the opinion in Claymore v. City of Albuquerque, 96 N.M. 682, 634 P.2d 1234 (Ct.App.1980), aff’d Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), became final.
To the contrary, defendants’ Answer Brief states:
In point XI, Ruiz asserts that if this case was subject to the comparative negligence doctrine there would be some factors the jury must decide in order to render a decision in this case. Ruiz, however, makes no claim that the comparative negligence doctrine applies to this case. He cannot make such a claim because the doctrine of comparative negligence is not applicable to this case * * [R]eferring to cases on appeal, the [Claymore] court held that the comparative negligence doctrine would only apply to those cases “in which the issue [of comparative negligence] is preserved.” [Emphasis added.]
Claymore said:
Therefore, we hold that the rule herein adopted be applicable to the instant case and all cases filed hereafter. Further in those appropriate cases in which trial commences after the date on which this opinion becomes final, including those which may be remanded for retrial for whatever reason, comparative negligence shall be applicable. And, finally, the new rule shall be applicable to any case presently pending in the appellate courts in which the issue is preserved. [Emphasis added.]
Claymore was decided December 9, 1980. It became final after February 12, 1981 [Scott v. Rizzo, supra], and after mandate was issued. The skeleton transcript was filed in the clerk’s office on September 3, 1980. Ruiz was “presently pending.” The specific provision, which requires that “the issue is preserved,” holds sway over the previous general provisions. What is meant by “in which the issue is preserved”?
This language is vague and uncertain in meaning. It is temporary in nature and applicable only to cases pending in this Court. When pending cases are finally resolved, this portion of the Claymore rule will end. Of course, pending cases affirmed will not be subject to the comparative negligence doctrine. Pending cases reversed and remanded for trial, not retrial, shall be governed by the comparative negligence doctrine “if the issue is preserved.” Some determination must be made in this Court whether “the issue is preserved.”
“Issue” is defined as “ ‘a single, certain and material point, deduced by the pleadings of the parties which is affirmed on one side and denied on the other.’ Black’s Law Dictionary.” Morel v. Highline Construction Co., 339 So.2d 1324, 1325 (La.App.1976). In construing “issues before said board,” Daihl v. County Board of Appeals of Baltimore Co., 258 Md. 157, 265 A.2d 227, 229 (1970) the court said:
Issue connotes a matter which lends itself to a separate finding or separate holding that is, something which involves a separate point. Webster’s New World Dictionary (College Edition) defines “issue” as: “ * * * a point, matter or question to be disputed or decided * *
The “issues” in a case are made up by the pleadings. Ribarin v. Kessler, 78 Ohio App. 289, 70 N.E.2d 107 (1946). An “issue” is a statement of material fact in a pleading of one party which is denied in a pleading of the other party. If it is a proposition of fact, it is to be tried upon the evidence adduced. Parliman v. Young, 2 Dak. 175, 4 N.W. 139 (1879). Hong Sling v. Scottish Union & Nat. Ins. Co., 7 Utah 441, 27 P. 170 (1891).
Comparative negligence is the “issue” in this pending case. It is our duty to resolve the issue. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978).
The meaning of the word “preserve” is that defined in Webster’s International Dictionary as connoted. Securities Investment Co. of St. Louis v. Donnelley, 89 Nev. 341, 513 P.2d 1238, 1241-42 (1973) and cases cited. It states:
The word “preserve” is susceptible to a broad range of connotations from maintaining something in its status quo to preventing its total destruction. It implies the continuance of what previously existed. In none of its uses does it connote creating something new or extending an existing thing or status. [Emphasis added.] [Id. 1241-42.]
The Claymore rule now reads:
Comparative negligence shall be applicable to any case presently pending in the appellate courts in which the issue of comparative negligence, shall not be extended beyond February 12, 1981, but shall remain in its status quo. The rule that previously existed is in effect.
The Claymore rule is not applicable. What Claymore intended to say was: “in which the issue is not preserved,” i.e., that the doctrine of comparative negligence as decided in Claymore, shall, in its present form, continue to be used until all pending cases have been decided and reversed. Until Claymore is amended, it is not applicable to pending cases. It cannot be amended by this Court. Certiorari was granted. In Scott v. Rizzo, supra, the Supreme Court said:
It is the decision of this Court that we adopt in toto the opinion authored by Judge Walters of the Court of Appeals ***.
Upon reversal comparative negligence is not applicable in the instant case.
E. Summary judgment should be affirmed as to defendant M. D. Chavez.
Ruiz claims that: (1) “Failure to Blow the Whistle and Ring the Bell Prior to Starting Forward Was the Proximate Cause of the Accident”; (2) “Failure To See Mr. Ruiz Prior To Movement Of The Train [was the] Violation Of The Duty To Keep A Lookout and Could Be Considered the Proximate cause of the accident” [this point is directed to J. D. Cooper, the engineer]; (3) “The Train Crew Failed Either To Look For Or To See Mr. Ruiz Before And During His Crossing Between The Cars And Were Thereby Negligent.”
M. D. Chavez, trainmaster of A., T. & S. F., was, at the time of the accident, charged with the duty of supervising A., T. & S. F. employees in the Deming yard. He was not present in the Deming yard at the time of the accident and had no relationship with the factors that are alleged to have been the cause thereof. No conduct of M. D. Chavez contributed to nor participated in this accident. To argue that Chavez was in charge of making recommendations for yard safety; that possibly he was aware that pedestrians cross the railroad track and then conclude that “the role Mr. Chavez plays in supervision becomes critical in determining the cause of the accident in this case” does not approach a factual issue.
No authority is cited in support of plaintiff’s position. In cases reviewed by this Court, points raised without authority in support thereof, should not receive serious consideration.
Summary judgment should be affirmed as to M. D. Chavez.
F. Summary judgment should be affirmed in denial of plaintiff’s claims for punitive damages.
Plaintiff claims that the issue of wanton and reckless conduct on behalf of defendant railroads is an issue of fact. The purpose of this point is to grant plaintiff an opportunity to seek punitive damages. Count II of plaintiff’s complaint excoriates the railroad companies with wanton and reckless conduct and alleges that the railroad companies should be assessed punitive damages. Plaintiff is mistaken in the relief sought.
Reliance is had primarily on Annot. What conduct on part of railroad, in connection with crossing accident, amounts to wantonness, wilfulness, or the like, precluding defense of contributory negligence, 151 A.L.R. 9 (1944). This annotation and all cases which are cited, involve a rule already adopted in New Mexico, that contributory negligence will be denied as a defense where an act of negligence of a defendant shows a reckless, wilful and wanton disregard of human life and the consequences of his acts. Galvan v. City of Albuquerque, 85 N.M. 42, 508 P.2d 1339 (Ct.App.1973).
Denial of the defense of contributory negligence is not an issue in this appeal on punitive damages. Definitions of “wanton and reckless conduct” are a game in semantics, but it is a crucial issue on remand if plaintiff amends Count II. It is doubtful from the record now before this Court whether any such conduct of A., T. & S. F. Ry. Co. has been established by plaintiff. No such claim can be made against defendant Southern Pacific.
We are confronted with whether a railroad company can be assessed punitive damages by a jury. This issue first arose in Denver & R. G. Ry. Co. v. Harris, 3 N.M. (Gild) 114, 2 P. 369 (1884), aff’d 122 U.S. 597, 7 S.Ct. 1286, 30 L.Ed. 1146 (1887). Harris was discussed in Cerrillos C. R. R. Co. v. Deserant, 9 N.M. 49, 49 P. 807 (1897). The court also quoted from the case of Lake Shore, etc., Ry. Co. v. Prentice, 147 U.S. 101, 13 S.Ct. 261, 37 L.Ed. 97 (1893). The quotation is:
“To give exemplary damages there must have been some willful misconduct, or that entire want of care which would raise the presumption of a conscious indifference of consequences.” [9 N.M. 68, 49 P. 807.]
Stewart v. Potter, 44 N.M. 460, 104 P.2d 736 (1940) expressed itself in favor of the rule observed in the leading case of Lake Shore:
“A principal * * * cannot be held liable for exemplary or punitive damages, merely by reason of wanton, oppressive, or malicious intent on the part of the agent.” [Id. 466, 104 P.2d 736.]
Other quotations were to the effect that “such damages cannot be allowed, where the principal is prosecuted for the tortious act of his servant, unless there is proof in the cause to implicate the principal and make him particeps criminis of his agent’s act. “No man should be punished for that of which he is not guilty”; that punitive damages are “indefensible in legal principal.”
From Lake Shore, Stewart established this fundamental rule:
[T]he principal, or master, is liable for punitive or exemplary damages only in cases where he has authorized, participated in or ratified the acts of the agent [Emphasis added.] [Id. 466, 104 P.2d 736.]
This rule remained steadfast. Couillard v. Bank of New Mexico, 89 N.M. 179, 548 P.2d 459 (Ct.App.1976); Samedan Oil Corp. v. Neeld, 91 N.M. 599, 577 P.2d 1245 (1978).
For at least 87 years, “[i]nsofar as we have been able to discover, the United States Supreme Court has not waivered on the concept of the punitive-damage award as a viable principle of federal common law.” Baptiste v. Superior Court for Cty., Etc., 106 Cal.App.3d 87, 164 Cal.Rptr. 789, 793 (1980); Remeikis v. Boss & Phelps, Inc., 419 A.2d 986 (D.C.App.1980). Omitting citations, including Lake Shore, the Remeikis court said:
Moreover, since each of the defendants is a corporation, it must be shown that the wrongful act was authorized and ratified by the corporation, not merely perpetrated by an employee. One way to establish that the corporation was involved is to show that an executive officer of high rank participated in the misconduct. [Emphasis added.] [Id. 992.]
This concept exemplifies the rule in New Mexico. See Couillard, supra.
True, more “liberal” views have been suggested. See dissenting opinion in Samedan Oil Corp., supra, and elsewhere. Recovery of Punitive Damages from Corporate Defendants for the Tortious Acts of Employees, 10 Lincoln L.Rev. 207 (1977). “On the other hand, forceful arguments have been made that the doctrine of punitive damages should be abolished.” Mallor-Roberts, Punitive Damages: Toward a Principled Approach, 31 Hastings L.J. 639, 640 (1980). This article focuses the problem:
Because of the danger of an excessive or inappropriate imposition of punitive damages, courts must supervise punitive damage awards closely to ensure that they are imposed only when justified. Yet the standards for imposing and assessing punitive damages remain frustratingly vague. Appellate records are replete with evidence that judges desparately want guidance on this issue. [Id. 642.]
For an overview of the history, philosophy, theory, purposes, restrictive and expansive views, vagary and disagreements of authors and courts, see, also Long, Punitive Damages: An Unsettled Doctrine, 25 Drake L.Rev. 870 (1976); Reisberg, In Defense of Punitive Damages, 55 N.Y.U.L.Rev. 303 (1980); Kramer & Schnebeck, Punitive Damages in Idaho, 17 Idaho L.Rev. 87 (1980); Morris, Punitive Damages in Tort Cases, 44 Harvard L.Rev. 1173 (1931). For the California rule which follows Restatement Torts § 909 (1939) see, Hale v. Farmers Insurance Exchange, 42 Cal.App.3d 681, 117 Cal.Rptr. 146 (1974). For additional railroad cases, see, Warner v. Southern Pac. Co., 113 Cal. 105, 45 P. 187 (1896), which favored the railroad, and McInerney v. United Railroads, 50 Cal.App. 538, 195 P. 958 (1920) where liability was upheld.
The guidelines set by Restatement of Torts are found in § 908 (1939). These guidelines have generally been followed. See, Harrell v. Ames, 265 Or. 183, 508 P.2d 211 (1973); Huggins v. Deinhard, 127 Ariz. 358, 621 P.2d 45 (1980); Linscott v. Rainier Nat. Life Ins. Co., 100 Idaho 854, 606 P.2d 958 (1980); Shepard’s Restatement of the Law Citations 246 (1976), (1981).
New Mexico has long adopted its guidelines. Any change or modification thereof rests with the Supreme Court. Under our rules, not a scintilla of evidence exists to warrant submission of punitive damages to the jury. No genuine issue of this material fact is present. Denial of submission of punitive damages should be affirmed.
G. Defendants were under no duty to ■fence their railroad track.
Plaintiff claims defendant railroads had a duty to fence their railroad tracks for various reasons. Reliance is had on Hayes v. Michigan Central R. R. Co., 111 U.S. 228, 4 S.Ct. 369, 28 L.Ed. 410 (1884). In Hayes the ordinance involved provided that the railroad shall erect and maintain fences that would prevent animals from straying upon or obstructing its tracks “and secure persons and property from danger * * New Mexico’s statute is limited to livestock. Section 77-16-16, N.M.S.A. 1978. It should be noted that absent a statute, it was not negligent for a railroad to fail to fence their tracks against livestock by any rule at common law. Hittson v. Chicago, R. I. & P. Ry. Co., 43 N.M. 122, 86 P.2d 1037 (1939); Railway Co. v. Cazier, 13 N.M, 131, 79 P. 714 (1905).
In the absence of statute, there is no duty upon a railroad to fence its tracks or right of way for any purpose. Consequently, the failure to do so is not negligence as to persons who come upon the tracks at a point where there is no fence and are injured. Kershaw Motor Co. v. Southern R. Co., 136 S.C. 377, 134 S.E. 377 (1926), 47 A.L.R. 858 (1927). This rule even applies to children who trespass. Briney v. Illinois Cent. R. Co., 324 Ill.App. 375, 58 N.E.2d 286 (1944); Carter v. Pennsylvania R. Co., 75 Ohio App. 156, 61 N.E.2d 230 (1944); Malischewski v. Pennsylvania R. Co., 356 Pa. 554, 52 A.2d 215 (1947); Lefler v. Pennsylvania R. R., 203 Misc. 887, 118 N.Y.S.2d 389 (1952).
H. Objections sustained to answers to interrogatories requested were not erroneous.
Interrogatory # 13 pertained to studies made in connection with upgrading; # 14, studies in re effectiveness of warnings; # 15, in re complaints, orders, notices, comments regarding crossing; # 24, in re request to install warning devices or fences; # 26-59, in re punitive damages; # 74, in re names and addresses of flagman, watchmen; # 75, in re names and addresses of persons having duties regarding crossings and approaches; # 78, in re names and addresses of persons given written or oral reprimand or warning; # 84, in re number of freight cars in use without end platform; and # 91, names and addresses of all employees fired since January 1, 1974.
Plaintiff cites no authority to support his position. None of the questions asked are pertinent to the issues in this case and discovery will not assist plaintiff.
Objections made by defendant railroad, stated “Objected to.” In 1979, Rule 33 of the Rules of Civil Procedure was amended. One portion reads:
Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objections shall be stated in lieu of an answer. [Emphasis added.]
This rule is mandatory and must be followed. Its purpose is clear. Prior to a hearing before the court, the opposing party will have knowledge of the reasons for objection and can adequately prepare to meet the challenge. The court will also have knowledge of the reasons given. At the hearing, surprise and speculation will end and a ruling may easily be determined. Lackey v. Mesa Petroleum Co., 90 N.M. 65, 559 P.2d 1192 (Ct.App.1976).
Plaintiff not having raised this matter in the district court, it is waived.
Objections sustained as to interrogatories submitted were not erroneous.
Summary judgment should be affirmed.