2019 New Mexico Statutes
Chapter 41 - Torts
Article 2 - Wrongful Death; Actions for Damages
Section 41-2-4 - Death caused by railroad, stage coach or public conveyance; action for damages; defense.

Whenever any person shall die from any injury resulting from, or occasioned by[,] the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car or train of cars, or of any driver of any stage coach or other public conveyance, while in charge of the same as driver; and when any passenger shall die from injury resulting from or occasioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car, or in any stage coach or other public conveyance, the corporation, individual or individuals, in whose employ any such officer, agent, servant, employee, engineer or driver, shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stage coach or other public conveyance, at the time any injury is received resulting from or occasioned by any defect, insufficiency, negligence, unskillfullness [unskillfulness] or criminal intent above declared, shall be liable in damages compensatory and exemplary, for such sum as a jury may deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment or any interest therein, recovered in such action and also having regard to the mitigating or aggravating circumstances attending such defect or insufficiency, which may be sued and recovered; first by the husband or wife of the deceased; or second, if there be no husband or wife, or if he or she fails to sue within six months after such death then by the minor child or children of the deceased; or third, if such deceased be a minor and unmarried, then by the father and mother; or fourth, if the deceased has reached the age of majority and is unmarried, by a dependent father or mother or dependent brother or sister, who may join in the suit; and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor. In the event there are no such persons entitled to sue or in the event suit is not brought by any such persons within nine months after such death, suit may be brought by the personal representative or representatives of such deceased person.

History: Laws 1882, ch. 61, § 1; C.L. 1884, § 2308; C.L. 1897, § 3213; Code 1915, § 1820; C.S. 1929, § 36-101; Laws 1931, ch. 19, § 1; 1941 Comp., § 24-104; Laws 1947, ch. 125, § 1; 1953 Comp., § 22-20-4; Laws 1955, ch. 270, § 1; 1973, ch. 138, § 13.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For limitation of actions, see 41-2-2 NMSA 1978.

For railroad's liability for injuries to or death of employees, see N.M. Const., art. XX, § 16.

Repeal and revival of section. — In view of the fact that this section was repealed by Laws 1887, ch. 2, § 7, which in turn was repealed by Laws 1889, ch. 75, § 4, the rule of common law would be applied to revive this act, and make it again effective. Gallegos v. Atchison, T. & S.F. Ry., 1923-NMSC-032, 28 N.M. 472, 214 P. 579.

Section is not unconstitutional for want of a taker under it. Tauch v. Ferguson-Steere Motor Co., 1957-NMSC-039, 62 N.M. 429, 312 P.2d 83.

Constitutionality of denying recovery against employee. — It is not unconstitutionally discriminatory to deny a right of action for wrongful death against a negligent employee of a public conveyance, while granting the right against other negligent employees, under 41-2-1 NMSA 1978. Schloss v. Matteucci, 260 F.2d 16 (10th Cir. 1958).

Legislative intent as to master-servant rule. — By enactment of statute authorizing recovery of damages for negligent death of persons by railroad company, its officers, agents or employees, the legislature did not intend to change the common-law rule exempting a master from liability to servant for negligence of fellow servant. Lutz v. Atlantic & Pac. Ry., 1892-NMSC-017, 6 N.M. 496, 30 P. 912, 16 L.R.A. 819 (1892).

Applicability to airplane pilot. — In the case of an airplane the terminology is "pilot," which means the same thing as "driver" for all practical as well as legislative purposes. In re Estate of Reilly, 1957-NMSC-095, 63 N.M. 352, 319 P.2d 1069.

Meaning of "locomotive," "car" and "stage coach". — The words "locomotive," "car" and "stage coach" refer to and include quasi-public corporations and agencies engaged in serving the public in the transportation of passengers and goods. Cain v. Bowlby, 114 F.2d 519 (10th Cir.), cert. denied, 311 U.S. 710, 61 S. Ct. 319, 85 L. Ed. 462 (1940).

Nature of wrongful death provisions. — New Mexico Wrongful Death Act [41-2-1 through 41-2-4 NMSA 1978] creates a cause of action which did not exist at common law and the limitation provisions thereof are not only a limitation on the remedy, but also on the right to institute such an action. Perry v. Staver, 1970-NMCA-096, 81 N.M. 766, 473 P.2d 380.

Intent of section. — The section is intended to protect life and to impose a new and extraordinary civil liability on those causing death by subjecting them to private actions for pecuniary damages resulting to family of deceased. Nichols v. Atchison, T. & S.F. Ry., 286 F. 1 (9th Cir. 1923), aff'd, 264 U.S. 348, 44 S. Ct. 353, 68 L. Ed. 720 (1924).

More than compensation contemplated. — The statutes allowing damages for wrongful act or neglect causing death have for their purpose more than compensation. It is intended by them, also, to promote safety of life and limb, by making negligence that causes death costly to the wrongdoer. Langham v. Beech Aircraft Corp., 1975-NMSC-064, 88 N.M. 516, 543 P.2d 484.

Strict construction. — The Wrongful Death Act [41-2-1 through 41-2-4 NMSA 1978] is in derogation of the common law and must be strictly construed. Cain v. Bowlby, 114 F.2d 519 (10th Cir.), cert. denied, 311 U.S. 710, 61 S. Ct. 319, 85 L. Ed. 462 (1940).

Though the New Mexico Wrongful Death Act, being in derogation of common law is to be construed strictly, the rule is applicable only in cases of doubtful meaning. Myers v. Pacific Greyhound Lines, 134 F.2d 457 (10th Cir. 1943).

Exclusivity of action. — Right of action for wrongful death caused by common carrier is exclusive of right of action for wrongful death caused by person or corporation other than common carriers. Mallory v. Pioneer S.W. Stages, Inc., 54 F.2d 559 (10th Cir. 1931).

Suit against airplane pilot. — Administrator of the estate of one of deceased passengers of crashed airplane could not obtain a personal judgment against the pilot under 41-2-1 NMSA 1978 based on the pilot's alleged negligence as this section is the exclusive statutory remedy available to plaintiff. In re Estate of Reilly, 1957-NMSC-095, 63 N.M. 352, 319 P.2d 1069.

Remedy is exclusive and an exception to the wrongful death statute. Tilly v. Flippin, 237 F.2d 364 (10th Cir. 1956); In re Estate of Reilly, 1957-NMSC-095, 63 N.M. 352, 319 P.2d 1069.

Recovery against employer or owner only. — This section limits those from whom recovery may be had to the employer of the person whose negligence, unskillfulness or criminal intent in running, conducting, managing or driving the public conveyance caused or occasioned death to the "owner" of the public conveyance, which does not include an airplane manufacturer. Langham v. Beech Aircraft Corp., 1975-NMSC-064, 88 N.M. 516, 543 P.2d 484.

Employer common carrier. — An action under this section is limited to recovery only from the employer common carrier. In re Estate of Reilly, 1957-NMSC-095, 63 N.M. 352, 319 P.2d 1069.

Owner driving truck as common carrier. — Where injury is caused by the owner operating truck as a common carrier rather than by an employee or agent of the common carrier this section has no application. White v. Montoya, 1942-NMSC-031, 46 N.M. 241, 126 P.2d 471.

Unauthorized operator driving. — The owner of a truck operated as a common carrier for hire will be liable for wrongful act causing death, even though the truck was at the time being driven by an unauthorized person, while the regular operator slept. Cain v. Bowlby, 114 F.2d 519 (10th Cir.), cert. denied, 311 U.S. 710, 61 S. Ct. 319, 85 L. Ed. 462 (1940).

Employee-driver. — Recovery may not be had under this section against the "employee-driver" of a "public conveyance." Langham v. Beech Aircraft Corp., 1975-NMSC-064, 88 N.M. 516, 543 P.2d 484.

Statute excludes any liability of negligent employee for wrongful death. Campbell v. Matteucci, 261 F.2d 225 (10th Cir. 1958), cert. denied, 359 U.S. 966, 79 S. Ct. 877, 3 L. Ed. 2d 834 (1959); Schloss v. Matteucci, 260 F.2d 16 (10th Cir. 1958).

Effect of ejusdem generis. — This section controls actions for wrongful death caused by negligence of a truck while engaged as a common carrier, and the doctrine of ejusdem generis does not restrict its applicability to passenger carrying conveyances, for it is not confined to means of transportation which were known at time of its original enactment in 1882. Sanchez v. Contract Trucking Co., 1941-NMSC-049, 45 N.M. 506, 117 P.2d 815.

Section applies to truck common carrier for hire. — In respect to the recovery of damages for wrongful death which by terms of the statute applies to death resulting from operation of a locomotive, car, stage coach or other public conveyance, considering the statute as being prospective in operation, it applies to death occasioned by the wrongful act of the operator of a truck engaged as a common carrier for hire. Cain v. Bowlby, 114 F.2d 519 (10th Cir.), cert. denied, 311 U.S. 710, 61 S. Ct. 319, 85 L. Ed. 462 (1940).

Common carriers by air are included along with other common carriers within the term "other public conveyance" contained in this section. In re Estate of Reilly, 1957-NMSC-095, 63 N.M. 352, 319 P.2d 1069.

An airline company engaged regularly in the transportation of persons and property for hire between points within the state and from a point within this state and return thereto is a common carrier. In re Estate of Reilly, 1957-NMSC-095, 63 N.M. 352, 319 P.2d 1069.

Liability of pilot barred. — Since an action is limited to recovery only from the employer common carrier, no recovery under this section may be had against the pilot. In re Estate of Reilly, 1957-NMSC-095, 63 N.M. 352, 319 P.2d 1069.

In an action arising out of the crash of a common carrier airplane against the estate of the pilot to recover damages for wrongful deaths, the court dismissed the action. Campbell v. Matteucci, 261 F.2d 225 (10th Cir. 1958), cert. denied, 359 U.S. 966, 79 S. Ct. 877, 3 L. Ed. 2d 834 (1959).

Contract and common carriers contrasted. — One who gathers garbage for disposal is a contract carrier and not a common carrier since the latter transports goods or property consigned for delivery. Fairchild v. United Serv. Corp., 1948-NMSC-048, 52 N.M. 289, 197 P.2d 875.

Contributory negligence may be urged as a defense under the wrongful death statute as may any common-law defenses where the lawmakers omit any reference as to defenses which might be interposed. Le Doux v. Martinez, 1953-NMSC-016, 57 N.M. 86, 254 P.2d 685.

Effect of pleadings on jury instructions. — Where the pleadings as framed limited the issue of contributory negligence to the parents and the child, an instruction that negligent acts of an uncle with whom the two year old child was crossing the street were imputable to child's parents, had no basis and was erroneous. Le Doux v. Martinez, 1953-NMSC-016, 57 N.M. 86, 254 P.2d 685.

Jury instruction erroneously refused. — In action for wrongful death of child of two years and eight months, an instruction that "children of tender years are entitled to care proportionate to their inability to foresee and avoid perils which they may encounter" and that "the duty and standard of care required to avoid doing them injury increases with their inability to protect themselves" was erroneously refused. Le Doux v. Martinez, 1953-NMSC-016, 57 N.M. 86, 254 P.2d 685.

Limitation on who may be sued. — Where a statute gives the cause of action and designates the persons who may be sued, they alone are authorized to be sued. Langham v. Beech Aircraft Corp., 1975-NMSC-064, 88 N.M. 516, 543 P.2d 484.

Suit in name of administrator prohibited. — A right of action for damages under this section does not exist in the name of the administrator of the estate of the deceased. Romero v. Atchison, T. & S.F. Ry., 1903-NMSC-008, 11 N.M. 679, 72 P. 37.

Effect on children of suit by widow. — This section does not confer a collective right of action in favor of the widow and minor children of deceased, and where the widow sues within six months, the minor children have no right of action. Frampton v. Santa Fe Nw. Ry., 1930-NMSC-036, 34 N.M. 660, 287 P. 694.

Effect of provisions authorizing suit by certain kinfolks. — Fact that wrongful death caused by common carrier was not, for want of proper kinship, maintainable under statute authorizing suit by certain kinfolks, did not make it maintainable under statute authorizing suit by same kinsmen for wrongful death caused by persons or corporations other than common carriers. Mallory v. Pioneer S.W. Stages, Inc., 54 F.2d 559 (10th Cir. 1931).

Recovery where no dependents. — Where decedent suffered wrongful death, was over 21 years of age, unmarried and left no dependent wife, children, parents or other dependent person, personal representative could recover statutory amount due to negligence of common carrier. Tauch v. Ferguson-Steere Motor Co., 1957-NMSC-039, 62 N.M. 429, 312 P.2d 83.

Effect of double dependency on right to recover. — Although the husband of the sister of the deceased was legally obligated to support her, and she was dependent upon him for support, that does not defeat her right to recover in wrongful death of brother if she was also dependent on him, and the question of dependency was for the jury. Myers v. Pac. Greyhound Lines, 134 F.2d 457 (10th Cir. 1943).

Since this section fails to define dependence, it would appear that substantial dependence of a sibling and substantial contributions to support are enough to entitle the sibling to obtain a recovery. Myers v. Pac. Greyhound Lines, 134 F.2d 457 (10th Cir. 1943).

Survival of action. — Cause of action, for death, asserted against a defendant as personal representative of alleged wrongdoer, a common carrier, did not survive the latter's death irrespective of the statute creating a right of action against the carrier, by reason of the survival statute, 37-2-1 NMSA 1978. Ickes v. Brimhall, 1938-NMSC-036, 42 N.M. 412, 79 P.2d 942.

Effect of death on appeal. — Death of widow, pending appeal from adverse judgment, does not abate her suit to recover against common carrier for the death of her husband, but such cause may be revived in the name of her personal representative. Frampton v. Santa Fe Nw. Ry., 1930-NMSC-036, 34 N.M. 660, 287 P. 694.

Presumption of care. — There is a presumption, in the absence of evidence to the contrary, that a person killed in crossing a railroad track, stopped, looked and listened. De Padilla v. Atchison, T. & S.F. Ry., 1911-NMSC-060, 16 N.M. 576, 120 P. 724.

Estoppel. — Upon the expiration of the three-year limitation period provided in 41-2-2 NMSA 1978, the right to maintain suit for the alleged wrongful death of decedent terminated, or was thereafter barred. Estoppel cannot be successfully asserted to lengthen the existence of such a statutorily created right of recovery. Perry v. Staver, 1970-NMCA-096, 81 N.M. 766, 473 P.2d 380.

Law reviews. — For article, "The Economic Side of Wrongful Death Actions in New Mexico," see 2 N.M.L. Rev. 127 (1972).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 22A Am. Jur. 2d Death §§ 11, 158, 182; 32B Am. Jur. 2d Federal Employer's Liability and Compensation Acts §§ 22, 52 et seq., 99 et seq.

Liability of common carrier by motor bus or taxicab for personal injury to or death of passenger where condition of highway was the cause or a contributing factor, 126 A.L.R. 1084.

Liability for civilian skydiver's or parachutist's injury or death, 95 A.L.R.3d 1280.

Products liability: personal injury or death allegedly caused by defect in aircraft or its parts, supplies, or equipment, 97 A.L.R.3d 627.

Liability of common carrier for personal injury or death of passenger occasioned by inhalation of gases or fumes from exhaust, 99 A.L.R.3d 751.

Motor carrier's liability for personal injury or death of passenger caused by debris, litter, or other foreign object on floor or seat of vehicle, 1 A.L.R.4th 1249.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.

Liability of motorbus carrier or driver for death of, or injury to, discharged passenger struck by other vehicle, 16 A.L.R.5th 1.

Recovery of prejudgment interest in actions under the Federal Employers' Liability Act or Jones Act, 80 A.L.R. Fed. 185.

25 C.J.S. Death §§ 17, 38(4).