Tapia v. Panhandle Steel Erectors Co.

Decision Date08 May 1967
Docket NumberNo. 8167,8167
PartiesBennie TAPIA and Western Causalty and Surety Company, Plaintiffs- Appellees, v. PANHANDLE STEEL ERECTORS COMPANY and Joe G. Myszkowski, Defendants-Appellants.
CourtNew Mexico Supreme Court
Sutin & Jones, Albuquerque, for appellants
OPINION

NOBLE, Justice.

Panhandle Steel Erectors Company (hereafter termed Panhandle) and Joe G. Myszkowski, defendants below, have appealed from a $40,000 judgment for personal injuries suffered by Bennie Tapia, plaintiff below, entered pursuant to a jury verdict.

Tapia fell from a ladder and was injured while working as a welder on a building being constructed for the University of New Mexico. His employer, Underwood-Testman Company, was the project's general contractor; Panhandle was a subcontractor; and defendant Myszkowski was Panhandle's employee. There was testimony that 2 4 boards were used as spacers between pre-cast concrete beams set in place by Panhandle in the construction of the building's dome. Tapia alleged that Myszkowski, while working for Panhandle, negligently failed to secure one such 2 4, and that this board pulled loose when Tapia took hold of it as he was moving up a ladder to the roof, causing him to lose his balance and fall.

The first point is directed to the trial court's denial of motions for a directed verdict made by the defendants at the close of plaintiff's case and again at the conclusion of all the evidence. Argument under this point is subdivided into five contentions, three of which attack the verdict as being unsupported by substantial evidence. The thrust of defendant's argument here is (1) that there was not evidence Myszkowski actually put the 2 4 between the beams, but (2) assuming he did, that this did not cause Tapia to fall, and (3) in conjunction with the question of causation, that the evidence is undisputed that Tapia's own conduct was the sole cause of his fall.

Proof that Myszkowski put into place the particular 2 4 claimed to have caused the fall comes solely from Tapia's testimony. Defendants argue that his testimony simply does not constitute substantial evidence.

Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, Wilson v. Employment Sec. Comm'n, 74 N.M. 3, 389 P.2d 855, and has been defined as evidence of substance which establishes facts from which reasonable inferences may be drawn. Brown v. Cobb, 53 N.M. 169, 204 P.2d 264. On appeal, all disputed facts are resolved in favor of the successful party, all reasonable inferences indulged in support of the verdict, all evidence and inferences to the contrary disregarded, and the evidence viewed in the aspect most favorable to the verdict. Totah Drilling Co. v. Abraham, 64 N.M. 380, 328 P.2d 1083; State ex rel. Magee v. Williams, 57 N.M. 588, 261 P.2d 131; Sessing v. Yates Drilling Co., 74 N.M. 550, 395 P.2d 824; Witt v. Marcum Drilling Co., 73 N.M. 466, 389 P.2d 403; Blancett v. Homestake-Sapin Partners, 73 N.M. 47, 385 P.2d 568. Nor does the fact that there may have been contrary evidence which would have supported a different verdict permit us to weigh the evidence. Renehan v. Lobato, 55 N.M. 532, 237 P.2d 100; State ex rel. Reynolds v. Lewis, 74 N.M. 442, 394 P.2d 593. Viewing the evidence in that aspect, it meets the substantial evidence test.

There appears to be no dispute as to the method and sequence of the work in the construction of the dome where Tapia was injured. Myszkowski and other Panhandle employees, using a crane, placed pre-cast concrete beams between the outer ring or wall of the building and an elevated dome platform at its center. Panhandle's employees precisely located and then spot-welded the beams at both ends to hold them in place. Later Myszkowski completed the welding. Underwood-Testman's employees, including Tapia, followed to weld lengths of angle iron on top of each pre-cast beam. After this angle iron had been securely welded, a third group of workers also employed by Underwood-Testman bolted 2 4 or 2 6 beams and plywood forms to the angle iron. Finally, concrete was poured into the forms to mold the ceiling. Thus, after the first few pre-cast beams were set in place, each group of workers followed in their turn. Tapia's crew followed immediately behind Myszkowski, who, at the time of the accident was the only Panhandle welder on the job. Thus, Tapia's testimony on direct examination was that the 2 4 that came loose when he took hold of it was placed between the beams by Joe Myszowski.

Tapia's testimony on direct and cross-examination is subject, at least, to being interpreted as containing certain inconsistencies. Defendants argue that his cross-examination contradicts the direct testimony as to whether Myszkowski in fact set any pre-cast beams on the day of the accident or placed any 2 4's between them. Defendants contend that because Tapia admitted on cross-examination that he did not actually see Myszkowski place the 2 4 which he says caused his fall, this nullifies his testimony on direct and that a witness' testimony can be no stronger than that given on cross-examination. We are not required to determine whether there are in fact contradictions in Tapia's testimony. If there are, they only affect the credibility of the witness. It has been firmly established in this jurisdiction that only the trier of the facts may weigh the testimony, determine the credibility of witnesses, reconcile inconsistent or contradictory statements of a witness, and say where the truth lies. Romero v. H. A. Lott, Inc., 70 N.M. 40, 369 P.2d 777; Montano v. Montoya-Saavedra, 70 N.M. 332, 373 P.2d 824; Sauter v. St. Michael's College, 70 N.M. 380, 374 P.2d 134.

Our review of the record discloses testimony that Myszkowski was welding on the day of the accident; that he was the only one working ahead of Tapia; and that he was the workman who separated the beams with the 2 4's.

We agree with Renfro v. J. D. Coggins Co., 71 N.M. 310, 378 P.2d 130, that a permissible inference must reasonably be based upon facts established in evidence and not upon mere conjecture or other inferences. In the light of the above testimony, however, we cannot say that the jury could not reasonably infer that Myszkowski inserted the 2 4 which later pulled loose.

Likewise, we find no merit to the contention that the court erred in denying the motions for a directed verdict because the plaintiff's fall was caused solely by his own conduct in slipping off the ladder. Of course, the fall resulted from Tapia slipping off the ladder. The real question is, what caused him to slip? He testified that the ladder did not reach completely to the top of the beam, so he took hold of the 2 4 while he stepped from the ladder to the roof, and that the 2 4 pulled loose causing him to slip, lose his balance, and fall to the ground. We find no failure of evidence which required the trial court to direct a verdict.

Nor can we adopt defendants' fourth contention in support of its motion seeking a directed verdict, that the evidence did not support the jury's conclusion that Myszkowski's conduct constituted negligence even assuming he did place the 2 4 between the beams. Myszkowski's own testimony acknowledge he was aware other workers would be coming up on the dome; that it was necessary for him to leave the place so as not to be a hazard to anyone else; and that a loose board would be dangerous. Quoting § 284, Restatement of the Law of Torts in Krametbauer v. McDonald, 44 N.M. 473, 104 P.2d 900 (1940), this court has defined negligent conduct to be 'an act which the actor as a reasonable man should realize as involving an unreasonable risk of causing an invasion of an interest of another.' Questions of negligence are generally questions for the jury. Hole v. Womack, 75 N.M. 522, 407 P.2d 362 (1965). We cannot say the jury must have erred; nor can we here say the accident and resulting injury were beyond the range of foreseeability. See Tipton v. Clower Drilling Co., 67 N.M. 388, 356 P.2d 46 (1960).

What has been said disposes of defendants' argument that there is no basis in the evidence upon which to predicate liability of the defendants.

Defendants next assert they owned Tapia no duty and, accordingly, they cannot be held liable for his injury. The rule appears to be well established that:

'Where two or more independent contractors, or a general contractor and one or more subcontractors, are engaged in work on the same premises, it is the duty of each contractor, in prosecuting his work, to use ordinary and reasonable care not to cause injuries to the servants of another contractor; and an employee of one contractor may recover against another contractor for injuries caused by the negligence of the latter contractor, or of his employees acting within the scope of their employment, in the performance of a duty owed by such contractor to the injured employee. * * *'

57 C.J.S. Master & Servant § 610, p. 382. Rumsey v. Schollman Bros. Co., 156 Neb. 251, 55 N.W.2d 668; Miller v. Brunson Const. Co., 250 S.W.2d 958 (Mo.1952); Smith v. St. Joseph Ry., Light, Heat & Power Co., 310 Mo. 469, 276 S.W. 607; Kiehling v. Humes-Deal Co., 16 S.W.2d 637 (St.Louis Mo. Ct.App.1929); Ziraldo v. W. J. Lynch Co., 365 Ill. 197, 6 N.E.2d 125; Hayden v. Paramount Prod., 33 Cal.App.2d 287, 91 P.2d 231; Annot., 38 A.L.R. 403, 471. From this, we conclude the trial court did not err in refusing to direct a verdict for the defendants.

Defendants' next eight points contest the propriety of certain instructions given and the denial of defendants' requested instructions. Instruction 22 enumerated elements of damage recoverable by the plaintiff. Although several objections to this lengthy instruction are urged...

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