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Montoya v. Kennecott Copper Corp. - 1956-NMSC-062, 61 N.M. 268, 299 P.2d 84


Detonators or blasting caps shall not be stored with other explosives but in separate magazines.


Decedent Jose Salvador Portillo was employed by the defendant Kennecott Copper Corporation as foreman of a blasting crew. While so employed, Decedent suffered an injury from an explosion arising out of and in the course of his employment, resulting in his death. His average weekly earnings were $ 125. Plaintiff Genoveva Montoya, as next friend of Maria Olivia Portillo, Decedent's dependent, filed an action under N.M. Stat. Ann. § 59-10-7 (1953) for 50 percent extra compensation for failure of defendant employer to provide a safety device required by law. It was alleged that the employer stored detonators and fuses together with explosives, in and on a certain truck, contrary to and in violation of N.M. Stat. Ann. § 63-25-13 (1953), which violation was responsible for the decedent's death. The employer filed a motion to dismiss the action on the grounds that there was a failure to state a claim upon which relief could be granted due to the failure to identify the specific safety device that the employer allegedly had failed to provide. The district court sustained defendant's motion to dismiss the amended complaint as failing to allege facts upon which relief could be granted as to the claim for the extra compensation. Plaintiff appealed.


Did the trial court err in dismissing plaintiff's claim for extra compensation for the employee's death because the employer failed to provide a certain safety device as required by law?




The court affirmed. It is readily observed from a reading of this instruction under the Workers Compensation Act that it interprets the "things" mentioned which "will lessen danger or secure safety," as something tangible, concrete, that can be seen, touched or felt -- an "instrumentality" -- as opposed to a rule or course of conduct.The court held that in order to recover under N.M. Stat. Ann. § 59-10-7 (1953), there had to be a showing of a particular safety device that the employer had failed to provide.

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