Ruiz v. Southern Pacific Transportation Co.

OPINION WALTERS, Judge. Plaintiff appeals a summary judgment entered against him on his claims for compensatory and punitive damages against the defendant railways, employees of those railways, and against several John Doe corporations who seem to be included in acts of negligence alleged in Count III of plaintiff’s complaint. We reverse. At the place where the accident occurred in Deming, it was a common practice for nearby residents to cross the railroad tracks when going to and from their homes. There were two worn pathways across the tracks. On the day of the accident plaintiff proceeded on the path leading to the downtown area and encountered a standing train on the tracks. The train had been “made up" between 1:30 and 4:30 p. m., and the crew had parked it slightly to the west of the depot while they went to eat supper. After waiting an undisclosed length of time and not observing any activity or seeing anyone around, plaintiff climbed onto a coupling between the cars to cross to the continuation of the path on the other side of the track. While he was holding on with one hand, one foot on the coupling and the other free to swing down to the ground on the other side, the train jerked and began to move forward. Plaintiff was knocked down; his legs and right hand were run over by the wheels of the train. His legs were amputated;. the hand was partially so and later surgically amputated. The parties undertook vigorous discovery and the deposition testimony before the trial court disclosed that railway employees were aware that at the location where the accident occurred Deming residents, including schoolchildren, “quite often” went underneath or over the cars to get through a standing train. According to plaintiff, “hundreds” of Deming townspeople have crawled over or under standing trains, and it happens every day. They avoid using a nearby underpass because it is a longer route and because, in rainy weather, it becomes flooded. The train’s fireman at the time of this incident said that trains have remáined stationary in the area from an hour to several days, “depending on the circumstances.” All of the railway personnel present on the day of the accident said that the engineer gave the usual two-blast whistle before he started up the train; plaintiff did not remember hearing any sounds before he attempted to climb over the cars, and he heard no train whistles. I. Summary judgment should not be granted if there are any material issues of fact. See the myriad of cases collected in the annotation following N.M.R.Civ.P. 56, N.M.S.A. 1978. It appears from the memorandum brief filed with the trial court in support of defendants’ motion, and from the Answer Brief filed here, that the basis for granting summary judgment in favor of all defendants was a determination of plaintiff’s contributory negligence as a matter of law. There is no uniformity on that issue in the cases dealing with accidents which occur when plaintiffs are known by the railroad to regularly cross railroad tracks either through open spaces between cars, or over or under standing cars. Compare, e.g., Jones v. Atlanta-Charlotte Air Line Ry. Co., 218 S.C. 537, 63 S.E.2d 476 (1951); Stratton v. Southern Ry. Co., 190 F.2d 917 (4th Cir.1951); Baltimore & O.R. Co. v. Papa, 133 F.2d 413 (D.C.App.1943); Small v. Boston & Maine R.R., 85 N.H. 330, 159 A. 298 (1932); Lerette v. Director Gen. of Railroads, 306 Ill. 348, 137 N.E. 811 (1923); Weatherford, M.W. & N.W. Ry. Co. v. Thomas, 175 S.W. 822 (Tex.Civ.App.1915); Catlett v. Colorado & S.Ry. Co., 56 Colo. 463, 139 P. 14 (1914); Freeman v. Terry, 144 S.W. 1016 (Tex.Civ.App.1912); Sheridan v. Baltimore & O.R. Co., 101 Md. 50, 60 A. 280 (1905), with, e.g., Chiribel v. Southern Pac. Co., 79 Nev. 311, 383 P.2d 1 (1963); Starovetsky v. Pennsylvania R. Co., 328 Pa. 583, 195 A. 871 (1938); Chesapeake v. O. Ry. Co. v. Daniel’s Adm’r., 216 Ky. 89, 287 S.W. 217 (1926); Rodriguez v. International & G.N.R. Co., 27 Tex.Civ.App. 325, 64 S.W. 1005 (1901); Lewis v. Baltimore & O.R. Co., 38 Md. 588, 17 A.R. 521 (1873). The railroad accident decisions holding contributory negligence as a matter of law variously refer to (1) a safe alternative route available to plaintiff, see Beck v. Southern Ry. Co., 149 N.C. 168, 62 S.E. 883 (1908); Starovetsky, supra; (2) plaintiff’s voluntary assumption of an apparent risk, Daniel’s Adm’r. and Lewis, supra; (3) violation by plaintiff of a statute or ordinance prohibiting clambering over, under, or through a train, Corcoran v. St. Louis, I.M. & S.R. Co., 105 Mo. 399, 16 S.W. 411 (1891); or other similar principles of negligence law. Most of the cases we have reviewed which reach the legal conclusion of contributory negligence have not discussed proximate cause, but have focused instead on the railroad’s lack of knowledge or notice that the train is likely to be crossed, or upon the fixed conviction that plaintiff is obliged to know of the inherent danger, “in the absence of proof that he is an idiot,” Rodriguez, supra. On the other hand, those decisions requiring that the matter be submitted to a jury almost invariably have been concerned with the factual matters which raise questions such as a railroad’s duty of care to a known trespasser (see Restatement of Torts (Second), § 334), or of its implied assent or invitation to cross the train by its longstanding acquiescence in the habit of persons to do so; or other justifying or excusing circumstances for plaintiff’s conduct, e.g., Lerette, Sheridan, Fruman, supra. “Where it has been the custom or habit for people to cross over, under, or between cars of a train obstructing a crossing, the railroad is held to have the duty to exercise reasonable care.” Annot., 27 A.L.R.2d at 379. This rule was recognized in a railroad accident case arising in New Mexico, James v. Atchison, T. & S.F. Ry. Co., 464 F.2d 173 (10th Cir. 1972), the Tenth Circuit noting that New Mexico Uniform Jury Instruction 10.3 requires measurement of the railroad’s “extent of duty” by consideration of the surrounding circumstances rather than by “a categorical approach based on the fact of trespass.” In Weatherford, supra, at 175 S.W. 825, the Texas Court of Civil Appeals said that “there was not necessarily any danger in crossing [over the couplings] * * * while the train was stationary. The danger was in the movement of the train without notice * * Sheridan v. Baltimore & O.R. Co., supra, at 60 A. 281, had earlier made the similar observation: “To cross over the bumpers between two freight cars, when at rest, is not necessarily a dangerous operation. The peril of the situation arises from the danger of the cars starting before the crossing is completed.” We are of the opinion that the instant case, according to the testimony offered by Mr. Ruiz, parallels almost identically the facts of Stratton v. Southern Ry. Co., 190 F.2d 917 (4th Cir. 1951). There, the trial court’s dismissal on grounds of failure to show negligence of the railway as the proximate cause of plaintiff’s injury, and plaintiff’s contributory negligence as a bar to recovery, was reversed on appeal, the court saying: And we do not think that, under the circumstances of the case, it could be said that recovery should be denied as a matter of law because of contributory negligence. In the first place, whether the plaintiff was guilty of contributory negligence was a question for the jury in view of the evidence that the cars had been standing on the crossing for a longer period of time than allowed by the city ordinance, that it could not be seen from the crossing that an engine was attached to them and that it was customary for persons to pass between cars when the crossing was blocked in this way * * *. In the second place, even if the plaintiff was guilty of negligence in going between the cars, it was for the jury to say whether the negligence of the defendant in moving the cars suddenly and violently without signal or warning was not the sole proximate cause of his injury * * * in view of the evidence as to the length of time that cars had been blocking the crossing and the custom of persons to cross between them in such circumstances. In Hunt v. Firestone Tire & Rubber Co., 448 P.2d 1018 (Okl.1968), the court explained that the analysis of proximate cause must be such as to establish it as the efficient cause which sets in motion the chain of circumstances leading to the injury; and if the negligence alleged merely furnishes a condition by which the injury was possible but a second independent act caused the injury, then the existence of the condition cannot be the proximate cause of the injury. We have recently ruled, in Sweenhart v. Co.-Con, Inc., 95 N.M. 773, 626 P.2d 310 (1981), that even though a prima facie showing of plaintiff’s negligence has been made, summary judgment is improper if the issue of proximate cause remains. The language quoted above from the Weatherford, Sheridan, Hunt, and Stratton decisions clearly establishes a line of authority which places the questions of contributory negligence and proximate cause in cases of the kind now before us into the hands of the jury for determination. The exposition of Lerette, supra, on proximate cause has frequently been cited in railroad accident cases. See, e.g., Bonnier v. Chicago, B. & Q.R. Co., 2 Ill.2d 606, 119 N.E.2d 254 (1954); Russell v. Richardson, 302 Ill.App. 589, 24 N.E.2d 185 (1939). We quote with approval from Lerette, at 137 N.E. 813-814: Violation of a law at the time of an accident by one connected with it is usually evidence of negligence, but there remains a question of fact whether the illegal act is the proximate cause of the injury. The mere fact that plaintiff was violating a law [and, thus, was negligent per se] at the time he was injured ought not to bar his right to recover, any more than the fact that defendant was violating a law at the time plaintiff was injured ought to conclusively establish plaintiff’s right to recover. Where the defense is that plaintiff’s unlawful [or negligent] conduct at the time of the accident was the proximate cause of the accident, the difficult question presented for determination is whether * * * [that] conduct was a direct and proximate cause contributing, with others, to the injury, or whether it was a mere condition of it. The mere fact that plaintiff was violating the law at the time he was injured will not bar his right to recover unless the unlawful act in some way proximately contributed to the accident in which he was injured. [Citations omitted.] In determining whether the * * * conduct of plaintiff will bar his right to recover, there must be kept in mind the distinction between that which directly and proximately produces, or helps to produce, the result as an efficient cause, and that which is a necessary condition or attendant circumstance of it. If the * * [plaintiff’s] act is a mere condition which made it possible for the accident to occur, but is in itself no part of the accident, it will not bar recovery. It is, of course, an essential condition of most accidents that the injured party be where he was at the time he was in order for the injury to occur, and the fact that he would not have been there if he had not been violating the law is not, in itself, a defense. [Citations omitted.] Granting, but not deciding, that appellee’s act in climbing through the string of cars, under the circumstances, was an illegal [or negligent] act, it is still a question of fact whether this * * * act was the proximate cause of the injury. [Citations omitted.] It is clear that appellee would not have been injured * * * if the cars had not been moved at the time and in the manner they were moved. It is therefore a controverted question of fact whether the act of appellee in climbing through the cars was the proximate cause of the injury received * * *. Respecting the effect of custom and usage on the question of contributory negligence arising from plaintiff’s negligence per se, our Supreme Court said a quarter of a century ago: “The plaintiff * * * was not guilty of contributory negligence as a matter of law in driving upon the left hand side of the road, a jury question being presented under the testimony particularly as to the custom and usage and the topography of the road.” Irwin v. Graham, 62 N.M. 72, 304 P.2d 875 (1957). We approve the reasoning and result in Tupponce v. Pennsylvania R. Co., 65 Pa. D.&C. 238 (affd. 358 Pa. 589, 57 A.2d 898 (1948), where defendant’s motion for judgment n.o.v. was denied. The court there said: Defendant’s only chance of success on this motion depends on demonstrating that plaintiff was guilty of contributory negligence, as a matter of law. To reach such a conclusion we must come finally to, and adopt the absolute rule that where a plaintiff crosses over a car, and mischief ensues to him, he has only himself to blame. And application of such an absolute rule would mean the refusal to consider or leave to the jury any concomitant circumstances on the question of contributory negligence. We are not disposed to an absolute rule declaring contributory negligence whenever a plaintiff crosses between cars * * *. The one rule to count upon is the usual one, that it depends on the circumstances, and those circumstances and the conclusion thereof are for the jury. Summary judgment should not have been granted on the basis of plaintiff’s contributory negligence as a matter of law. As Judge Wood said in Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967), the question of causation exists when the alleged negligence is negligence per se or common law negligence, and that question must be decided by the jury when one is timely demanded, as here. II. Plaintiff claims that defendants are liable in strict liability. We have already decided that plaintiff is entitled to a trial on the question of common law negligence. We are unable to determine by the court’s order of summary judgment that plaintiffs presumed count in strict liability, addressed in defendants’ brief supporting the motion for summary judgment, was also found to be without merit. We do not read Count III to allege strict liability, but assuming that the court decided it did and dismissed also for failure to state a claim in strict liability, that decision is affirmed. This case is not concerned with a seller of a defective product unreasonably dangerous to the user or consumer, so as to call upon the provisions of § 402A of Restatement of Torts (Second). It bears no similarity to Lay v. Vip’s Big Boy Restaurant, Inc., 89 N.M. 155, 548 P.2d 117 (Ct.App.1976); Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732 (1972), or Rudisaile v. Hawk Aviation, Inc., 92 N.M. 575, 592 P.2d 175 (1979), all of which dealt with a consumer injured by a defective product placed in the stream of commerce by. a seller, lessor, retailer, or other provider of goods. If, however, we are to consider plaintiff a user, § 402A of the Restatement, rather than §§ 519 and 520, also argued by plaintiff, would apply. Sections 519 and 520 discuss abnormally dangerous and ultrahazardous activities for which possessors of land might be strictly liable; Section 521 excepts common carriers in the performance of a public duty, and the comments under § 521 clearly indicate that the exception of common carriers is withdrawn only if the carrier is negligently unsafe in storing or carrying dangerous explosives. Explosives are not a part of this case. We would note, too, that our Uniform Jury Instructions (Civil), both at the time this case was filed and now (see Chapter 10 of the prior law; Chapter 13 of the 1981 revised instructions), have never discussed tort liability under the “Owners and Occupiers of Land” chapter in terms of strict liability. Rather, the instructions are couched in terms of negligence and ordinary care. New Mexico’s treatment of such torts, even against known trespassers, affirms the position taken by our Supreme Court in Proctor v. Waxler, 84 N.M. 361, 364, 503 P.2d 644 (1972), that although “the Restatement of the Law of Torts, as now amended, [is] persuasive authority entitled to great weight, it is not to be considered as precedent that this court is bound to follow at all times.” We can thus dispense with the strict liability considerations raised in the “500” series of the Restatement. New Mexico has not yet recognized the theory of a landowner’s strict liability except in cases where his activity has involved the use of explosives. Gutierrez v. Rio Rancho Estates, Inc., 93 N.M. 755, 605 P.2d 1154 (1980). As we have already said, neither can strict products liability under § 402A apply, because plaintiff was not a user or consumer of a product. In First Nat’l Bank, Albuquerque v. Nor-Am Agr. Prod. Inc., 88 N.M. 74, 537 P.2d 682 (Ct.App.1975), the Restatement definition of “user” and “consumer” was adopted. We recognized there that a user or consumer must first “acquire” the product, either directly from the manufacturer, seller, or retailer, or through a close and foreseeable association with one who has so acquired it. There is no acquisition of a product connected with the instant case. Compare Rudisaile v. Hawk Aviation, Inc., 92 N.M. 575, 592 P.2d 175 (1979); Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732 (1972). If by the longest stretch of the imagination plaintiff in this case could be considered a user or consumer of a service rather than of a product provided by defendants, he still would not be covered by the Restatement, since § 402A speaks only of a defective “product,” not of a “negligent service.” Providing negligent services may trigger ordinary negligence or breach of contract actions, see Stock v. Pierce, 96 N.M. 544, 632 P.2d 1182 (Ct.App.) filed June 30, 1981; or malpractice suits, see Schrib v. Seidenberg, 80 N.M. 573, 458 P.2d 825 (Ct.App.1969), but it does not form the basis for actions in strict liability. If plaintiff’s further argument on this issue can be read as a claim that some of the John Doe defendants furnished unsafe and defective freight cars, by reason of their failure to manufacture and distribute cars with “end platforms” which would have given plaintiff a safer place to cross, we are still of the opinion that he fails to make a case of strict liability under § 402 of the Restatement, supra. Privity is unnecessary, as we have heretofore observed, to create a situation of strict liability. Stang, supra. But plaintiff’s use of railroad equipment was not the use contemplated by the manufacturer or seller, nor was he the “ordinary” user or consumer within the reasonable anticipation of the manufacturer or seller. See Comments “c,” “i,” and “1” to § 402A, Restatement, supra. “Consumption includes all ultimate uses for which the product is intended * * Id., Comment “1.” The strict liability rule of § 402A “applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer * * * * [and] must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Id., Comment “i.” A manufacturer is not required to make a product safe for every conceivable use by every conceivable user. See Skyhook v. Jasper, 90 N.M. 143, 560 P.2d 934 (1977). The facts of this case, as pleaded and as developed thus far in discovery, do not present an issue of strict liability. III. Forty-three of defendants’ objections to plaintiff’s interrogatories were sustained by the trial court. We are asked to review the propriety of the trial court’s rulings, and since this case will be remanded for trial, we do so. Plaintiff’s Count II sets forth a claim for punitive damages. Punitive damages may be awarded to punish the defendant, not to compensate for a loss by plaintiff, Sanchez v. Dale Bellamah Homes of New Mexico, Inc., 76 N.M. 526, 417 P.2d 25 (1966), and as a warning to others, Christman v. Voyer, 92 N.M. 772, 595 P.2d 410 (Ct.App.1979). Recovery of punitive damages is permissible if the jury finds the wrongdoer’s conduct to be willful, wanton, malicious, reckless, oppressive, grossly negligent, or fraudulent and in bad faith, Loucks v. Albuquerque Nat’l Bank, 76 N.M. 735, 418 P.2d 191 (1966); N.M.U.J.I. (Civ.) 18.27, N.M.S.A. 1978; or when circumstances of aggravation are shown, Colbert v. Journal Publishing Co., 19 N.M. 156, 142 P. 146 (1914). Any one of the reasons for assessing punitive damages is sufficient to sustain such an award. Bank of New Mexico v. Rice, 78 N.M. 170, 429 P.2d 368 (1967). 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. In Claymore we said that the distinction between ordinary and gross negligence is abolished; ergo, defendants argue, the basis for imposition of punitive damages disappears. That is a false conclusion. A finding of “gross” negligence is only one reason for levying punitive damages; a jury might properly find defendant’s conduct to be willful, wanton, malicious, reckless, oppressive or fraudulent, or so grossly negligent as compared to plaintiff’s, that an award of punitive damages would be justified. See Galindo v. Western States Collection Co., 82 N.M. 149, 477 P.2d 325 (Ct.App.1970). A close look at Gray v. Esslinger, 46 N.M. 421, 130 P.2d 24 (1942), in which the “gross negligence” concept was elucidated, discloses that the discussion resulted because New Mexico at that time did not “recognize the doctrine of comparative negligence” (id., 46 N.M. at 428, 130 P.2d 24) and, therefore, a determination of “gross negligence” against the wrongdoer warranted denial to him of the defense of contributory negligence. In that sense only, “gross negligence” no longer need be shown — and is abolished—when deciding liability equivalent to one’s comparative negligence. A finding of gross negligence, however, is still a sound basis for awarding punitive damages. Appellants have confused an analysis of comparative liability with grounds for punitive damages. We examine, then, the interrogatories to which objections were sustained. The test is whether the information sought is “reasonably calculated to lead to discovery of admissible evidence” (Rule 26(B)(1), N.M.R.Civ.P., N.M.S.A. 1978) in support of plaintiff’s claims for compensatory and punitive damages for the negligent acts alleged. The general rule governing discovery is toward liberality rather than limitation. Griego v. Grieco, 90 N.M. 174, 181, 561 P.2d 36 (Ct.App.1977). Trial courts more frequently abuse their discretion in disallowing discovery than in granting it. See Davis v. Westland Dev. Co., 81 N.M. 296, 466 P.2d 862 (1970). Although many of the interrogatories at issue could have been more precisely framed, the information sought is recognizable. Nos. 13 and 14 inquired about studies made by defendants, if any, regarding safer crossing equipment and protective devices available; No. 15 was a related question asking about complaints or communications to the railroad from any source regarding railroad crossings. No. 24 solicited information about anyone or any entity requesting installation of warning or safety equipment for pedestrian crossings at the site of the accident. Plaintiff contends that answers to these questions could develop information regarding defendants’ notice and knowledge of a dangerous situation and of means by which to avoid the danger. Defendants’ disregard of known safety measures, if shown, could tend to prove negligence and perhaps even wanton and reckless negligence. See Snider v. Town of Silver City, 56 N.M. 603, 247 P.2d 178 (1952). Plaintiff was entitled to discover the information asked for in those interrogatories. The trial court upheld objections to Interrogatories 26 through 39 which were addressed to dividends paid by, market values, and net assets of, defendants and of corporations wholly-owned or controlled by defendants. The information was relevant to plaintiff’s claim for punitive damages. New Mexico has adopted the general rule admitting evidence of a defendant’s wealth for purposes of fixing the amount of punitive damages, if awarded. Aragon v. General Elec. Cred. Corp., 89 N.M. 723, 557 P.2d 576 (Ct.App.1976). The interrogatories were calculated to discover admissible evidence and should have been answered. It is within the trial court’s discretion to prohibit introduction of such evidence at trial unless and until such time as the jury has been furnished with proof of sufficiently aggravated conduct, if any, as would justify the jury’s imposition of punitive damages. Interrogatories 40 through 42 asked for statistics on the numbers of persons, pedestrians, and trespassers injured or killed on railroad property in the United States and in New Mexico for the past ten years. Nos. 46 and 49 sought the same information over the same period of time for injuries occurring in train yards and within municipality limits on railroad-controlled properties throughout the United States and New Mexico. Those questions apparently were intended to elicit information regarding the existence, and defendants’ notice and knowledge, of an industry-wide concern. Nos. 43, 44, 45, 47, and 50, also objected to and held by the trial court as not required to be answered, posed the same questions but limited the inquiries to injuries and deaths resulting from activities of or upon lands controlled by defendants in New Mexico. We think all of the interrogatories from Nos. 40 through 50 were properly submitted by plaintiff. Although some of the answers will overlap, as framed they will provide an analysis of defendants’ accident history, if one exists, as compared with state and national statistics. Evidence of the happening of accidents at other places is ordinarily not admissible to show whether the danger of such an accident exists at the place in question. If, however, such evidence would have the tendency to make the existence of defendants’ allegedly negligent omissions in this case, after notice and knowledge of danger, more or less probable, the evidence is relevant and admissible. N.M.R.Evid. 401, N.M.S.A. 1978. Compare McCormick v. Great Western Power Co., 214 Cal. 658, 8 P.2d 145, 81 A.L.R. 678 at 684, 687 (1932). Interrogatories 40 through 50 should be answered. Plaintiff asked, in Nos. 51 through 56, for the number and amounts of cash settlements made by defendants in the past ten years for death and injury claims. Objections to those interrogatories were properly sustained. The law encourages settlements and one ought not be subjected to an inference that liability has been admitted simply because a claim has been negotiated or compromised. Jones v. Jernigan, 29 N.M. 399, 223 P. 100 (1924). In the form asked, the interrogatories were objectionable. Interrogatory 57 inquired about the number of pedestrian injuries or deaths occurring during the past ten years, involving defendants’ railways, which did not happen as a result of the pedestrian being struck by the head of the train. The question does not appear difficult to answer and, again, the information is relevant on the issue of notice and knowledge. N.M.R.Evid. 401, 402, N.M.S.A. 1978. The question should be answered. Defendants were requested to state, in Nos. 58 and 59, the number of New Mexico pedestrian crossings over which defendants operate their trains; how many are located within each municipality; how many are public and how many are private crossings, and when each was constructed. To the extent the answers will relate to other interrogatories to be answered, this information sought is also relevant to notice and knowledge. Nos. 58 and 59 should be answered. No. 78 requested the names and addresses of all A.T.&.S.F. employees reprimanded or warned for failing to ring bells, blow whistles or otherwise appropriately warn, and by whom. This information, as it pertains to A.T.&.S.F. employees on duty at the time and place of the accident in question, is discoverable and admissible; however, the form of the interrogatory is, in our opinion, exceedingly broad and the trial court, in its discretion, could have so viewed it. We note that defendants have not stated, as required by N.M.R.Civ.P. 33(a), N.M.S.A. 1978, the reasons for their objections to interrogatories not answered, but the record indicates that a hearing was conducted on defendants’ objections and we assume that reasons were given at the hearing. The trial court’s ruling will not be disturbed. Cf. Griego v. Grieco, supra. The interrogatory inquiring about the number of freight cars without end platforms in use on A.T.&.S.F. trains, No. 84, is irrelevant in view of our discussion under II above. The court’s ruling on the objection is sustained. Plaintiff asked, in No. 91, for the names and addresses of all railroad employees fired since January 1, 1974. Unless limited to employees on duty at the time and place of the accident complained of, or to employees fired for negligence similar to that complained of, that information is irrelevant. The trial court should so circumscribe the requirement of defendants to answer that interrogatory. IV. No. 74 and 75 asked for information relating only to A.T.&S.F. employees on duty as flagman, watchmen or designated lookouts on June 19, 1978 at places where pedestrians are known to cross. Defendant A.T.&.S.F. should answer those interrogatories because it is not unlikely that the information sought will lead to admissible evidence on the questions of negligence, notice and knowledge. N.M.R.Civ.P. 26(B)(1), supra. Other “points” raised by plaintiff are arguments that issues of fact existed on the questions of defendants’ obligation to warn, failure to keep a look-out, lack of proper safety training, degree of care required of a landowner—all going to a determination of defendants’ negligence. We agree that those are factual matters to be determined by a jury, but they are not separate appellate issues requiring discussion. Whether, also, defendants should have fenced the property, in the absence of any statutory authority cited to us which requires it, is an argument plaintiff may be able to suggest to the jury but it is not a negligence issue for us to decide as a matter of law. This appeal has been argued by the parties on the presumption that defendants were negligent and that plaintiff was contributorily negligent as a matter of law. The respective duties of plaintiff and defendants; whether any or all of the parties were negligent and, if so, to what degree; whether any acts of the corporations or their agents were wanton or recklessly heedless or otherwise of a nature to warrant punitive damages; and, if any such wanton conduct was conduct of the defendants’ agents only, whether it was ratified by either or both of the corporate defendants, all are matters to be decided when this case is tried to a jury. We reverse the summary judgment because of these existing issues of material fact and remand this case for reinstatement on the trial court’s jury docket. It is so ordered. LOPEZ, J., concurs. SUTIN, J., concurs in part, dissents in part.