We begin our consideration of this question mindful of the fact that at the stage of the case when the motion was made all testimony in favor of the plaintiff had to be considered as true, as well as all inferences favorable to him which could be drawn therefrom. Williams v. City of Hobbs, 1952, 56 N.M. 733, 249 P.2d 765; Paulos v. Janetakos, 1937, 41 N.M. 534, 72 P.2d 1; Davis Carruth v. Valley Mercantile Banking Co., 1928, 33 N.M. 295, 265 P. 35. Briefly summarized, the facts which we feel required the trial court to deny the motion when made are:
The inquiry under New Mexico law is not dissimilar from that generally prevailing, that is, whether the plaintiff's conduct comes up to the standard that a reasonably prudent person would observe in order to avoid injury to himself. See Johnson v. Primm, 74 N.M. 597, 396 P.2d 426, 429 (1964); Williams v. City of Hobbs, 56 N.M. 733, 249 P.2d 765 (1952). This court has previously considered and applied the standards approved by the Supreme Court of New Mexico.
Olguin v. Thygesen, 47 N.M. 377, 143 P.2d 585 (1943); Tiedebohl v. Springer, 55 N.M. 295, 232 P.2d 694 (1951); Thompson v. Dale, 59 N.M. 290, 283 P.2d 623 (1955); Horrocks v. Rounds, 70 N.M. 73, 370 P.2d 799 (1962); Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364 (1966). If there was any evidence, either direct or circumstantial, from which legitimate inferences could be drawn, and upon which evidence and inferences the minds of reasonable men might differ as to whether or not plaintiff was guilty of contributory negligence, then the question was one for the jury. Mozert v. Noeding supra; Brown v. Hayes, 69 N.M. 24, 363 P.2d 632 (1961); Williams v. City of Hobbs, 56 N.M. 733, 249 P.2d 765 (1952). See Lopez v. Townsend, 42 N.M. 601, 82 P.2d 921 (1938); Restatement (Second) of Torts ยง 328B, comment d, ยง 328C, comment a (1965).
It is true that one is ordinarily guilty of contributory negligence if she fails to see and give heed to a danger which is plain to be seen, but ordinarily contributory negligence is a question of fact and not one of law. Mozert v. Noeding, supra; Curtis v. Schwartzman Packing Co., 61 N.M. 305, 299 P.2d 776; Williams v. City of Hobbs, 56 N.M. 733, 249 P.2d 765. It would serve no useful purpose to detail the facts upon which summary judgment was entered. Suffice it to say that our review of the record convinces us that this record is not such that plaintiff's conduct can be said, as a matter of law, to have constituted contributory negligence barring her recovery.
If there was any evidence, either direct or circumstantial, from which legitimate inferences could be drawn, and upon which evidence and inferences the minds of reasonable men might differ as to whether or not plaintiff was guilty of contributory negligence, then the question was one for the jury. Mozert v. Noeding, supra; Brown v. Hayes, 69 N.M. 24, 363 P.2d 632 (1961); Williams v. City of Hobbs, 56 N.M. 733, 249 P.2d 765 (1952). See Lopez v. Townsend, 42 N.M. 601, 82 P.2d 921 (1938); Restatement (Second) of Torts ยงยง 328B, comment d, ยง 328C, comment a (1965).
Reasonable minds might fairly differ as to the facts and inferences to be drawn from the evidence. Mozert v. Noeding, supra; Mahoney v. J.C. Penney Company, 71 N.M. 244, 377 P.2d 663; Canter v. Lowrey, 69 N.M. 81, 364 P.2d 140; Williams v. City of Hobbs, 56 N.M. 733, 249 P.2d 765. Whether the plaintiff exercised that degree of care required of a reasonably prudent person under like or similar circumstances for her own safety is a question of facts to be determined by the jury. Dominguez v. Southwestern Greyhound Lines, 49 N.M. 13, 155 P.2d 138; Seal v. Safeway Stores, Inc., 48 N.M. 200, 147 P.2d 359; Caldwell v. Johnsen, 63 N.M. 179, 315 P.2d 524, and Giese v. Mountain States Telephone Telegraph Co., 71 N.M. 70, 376 P.2d 24, all of which are relied on heavily by defendants, are in our view of the case, distinguishable, and in no way conflict with our conclusions herein.
Neither case involved an obvious danger or a duty to warn. Williams v. City of Hobbs, 56 N.M. 733, 249 P.2d 765, and Thompson v. Dale, 59 N.M. 290, 283 P.2d 623, are not applicable. Neither case dealt with a duty to warn.
The burden of such proof is on the defendant. Jackson v. Southwestern Public Service Co., 66 N.M. 458, 349 P.2d 1029; Williams v. City of Hobbs, 56 N.M. 733, 249 P.2d 765. Again, Giese v. Mountain States Telephone and Telegraph Company, supra, says nothing to the contrary and does not support defendant's position. The case is reversed and remanded with instructions to reinstate it on the docket and to proceed in a manner consistent herewith.
To bar recovery because of contributory negligence, the question to be answered is whether the plaintiff's conduct meets the standard that a reasonably prudent person would adopt to avoid injury to herself. Williams v. City of Hobbs, 56 N.M. 733, 249 P.2d 765. In this connection, attention is called to the language quoted from Gorman-Gammil Drug Co. v. Watkins, supra, wherein reference is made to the "ordinary conduct" of a "rational being."
Inasmuch as we recognize that under plaintiff's proof the minds of reasonable men could differ on the question of whether or not defendant's employee was negligent and whether or not decedent was contributorily negligent, we conclude that under the rules long followed by this court, it was error to instruct a verdict for defendant at the close of plaintiff's case. Terry v. Bisswell, 64 N.M. 153, 326 P.2d 89, 94; Williams v. City of Hobbs, 56 N.M. 733, 249 P.2d 765; Williams v. Neff, 64 N.M. 182, 326 P.2d 1073. In addition, the second cause of action stated grounds for relief, and the court erred in dismissing the same.