El Nuevo mexicano., 1917-04-12
COURT ACTS
IN CASE INVOLVING
5 INCHES OF LAND;
OTHER DECISIONS

/ OTHER Decisions
DOLORES oTERo DE BURG LOsEs
ON APPEAL; INTERESTING RuL
ING ON EMPLOYEES LIABILITY
The state supreme court t0da,
handed down a decision In a case In
volying three inches OF land In thu
Perea addition to the city Of Albu
querque.
The controversy was between two
women, Dolores Otero de Burg and
Manuela Armenia. When the latter
built a house on a lot adjoining one
owned by the former, the plaintiff and
appellant In the suit, brought action
for ejectment in the district court of
Bernalill0 county, alleging that the
defendant had encroached on her land
approximately three inches in width
for the entire length of the dot" The
defendant set forth that the lines of
the lot had been fixed by a competent
surveyor. On agreement for an in
structed verdict, the court instructed
the jury to find for the defendant, fol-
lowing which Dolores Otero de Burg
appealed to the supreme court in the
hope that it would give her the three
inches Of land. However, today's de-
cision afirms the judgment of the
district court. The opinion is by
Chief Justice Hanna.
Two athar aa;niouo hondad dourn h.,
Chief Justice Hanna today reverse the
Judgment Of the lower courts and re-
mand the u for new trial. One
is the case Of the State, appellant, VS..
Joseph B. Turner, from 5Bernalillo
county, in which the district court
quashed an indictment charging Tur-
ner with having defrauded the late II.
A. Miera out of S4505 for cattle by
means of a fraudulent check. The in
dictment was quashed on the ground
that it did not state facts sufficient to
constitute an offense against the laws
of the state, but in reversing the dist
riot court, Judge Hanna says:
"A false pretense is such a fraudus
lent representation of an existing OF
past fact, by one who knows it not to
he true, as is adapted to induce the
person to whom 1t is made to part
with something Of value. The giving
Of a worthless check constitutes a
representation that the drawer has
credit with the drawee bank for the
amount involved, and said representa-
ton relates to an existing fact so that
a prosecution for obtaining money by
pretenses may be maintained"
The other reversal is the case of
Juan B. Leyba, appellant, versus the
Albuquerque e Cerrillos Coal COM
pany, appellee, from Bernalillo coun-
ty, an action involving the liability of
employers. The statement and sylla-
bus in this case follow: 1
This is an action brought by plain
Tiff below, for damages on account of
personal injuries against the AIbu-
luerque & Cerrillos Coal company, a
corporation, alleging that during the
Of February, March, April and
May, 1913, he was employed blythe de-
company in the handling,
running, dumping and operating of
certain tramcars along the tramways
~ Vic odlu uClCluduL w u
with other allegations. To this
he defendant company answered,
forth the method Of retarding
on said tramway, etc.
"At the conclusion Of plaintiffs case
he defendant moved for a directed
upon several grounds, the only
me which this court is called upon to
being the evidence disclos-
that plaintiff had assumed the risk /
entering the employment of the DEL
endant company, and that, therefore, I
he defendant was not liable. The I
curt sustained this motion, saying: I
The court holds that the plaintiff in /
lssuming the employment, assumed /
he risk of employment {
Syllabus d
81. 1t is the duty of the master to
xercise reasonable care and skill to s
he end that the place where he re-
uires his servant to perform labor
hall be as reasonably safe as is COM
with its nature and surround
ngs. /
"2. The servant assumes all the or A
mary risks Of the service and all Of e
lie extraordinary risks, l.. e., those
ue to the masters negligence-of
ihich he knows and the dangers of 1
mich he appreciates.
"3. An extraordinary risk is not :
which is un common or unusual inv
he sense that IL is rare, but is one
,hich arises out II unusual conditions
OF resulting in the ordinary course Of
u%siness. and by reason of the mas
negligence.
"A. When the evidence is of such S
character that the proper inferenO
es to be drawn from it. as to the II
of risk by the servant, is a
question with respect to which diff Il
opinions may not unreasonably U
e formed, 1t must be submitted to cl
ne jury under Proper instructions p
ON the court.'' Il
,heepman Announces z :