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Hicks v. Artesia Alfalfa Growers' Ass'n. - 1959-NMSC-076, 66 N.M. 165, 344 P.2d 475

Rule:

Not all things which promote safety can be considered as safety devices, and even those things which might be safety devices for one purpose may not be so for another purpose. 

Facts:

In a worker's compensation action, the District Court of Eddy County (New Mexico) entered a judgment which allowed a 50 percent penalty, pursuant to N.M. Stat. Ann. § 59-10-7 (1953), for a failure to supply a safety device. Defendants, the employer and the employer's insurer, appealed the trial court decision in favor of plaintiff employee. After the unloading accident, defendants paid total compensation to the employee, but the employee brought the action because defendants' refused to pay the 50 percent increase as provided by statute for the failure to supply a safety device in general use in the unloading industry. Defendants moved for a directed verdict on the ground that the wires were not a safety device in general use for the use or protection of the workman, but rather were a device to hold the cargo rigid during shipment, and if the wires were a safety device, that they were furnished by the employer and that their premature removal by the crew under the direction of the foreman was an error in judgment, or negligence, but not a negligent failure to supply a safety device. The trial court denied the motion. 

Issue:

Were the plaintiff's injury proximately caused by the employer's failure to supply such safety devices?

Answer:

Yes

Conclusion:

It is the duty of the employer to supply reasonable safety devices in general use in the industry of the employer. It follows that if the employer is engaged in more than one industry, he is charged with supplying the safety devices in general use in each of such industries. Although the employer was generally in another type of business, the particular activity at the time of the accident was that of unloading a prefabricated steel building from a railroad car. Therefore, it had the duty of supplying reasonable safety devices for the work involved. Not all things which promote safety can be considered as safety devices, and even those things which might be safety devices for one purpose may not be so for another purpose. before such safety measures can be considered as safety devices of the unloading industry, there must be some proof that the same are in general use in that industry. Such proof is not present here.  The fact that another person in a similar occupation severed the wires differently does not thereby amount to proof that the wires were safety devices in general use under the statute.

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