428 P.2d 625 (N.M. 1967), 8167, Tapia v. Panhandle Steel Erectors Co.

Docket Nº:8167.
Citation:428 P.2d 625, 78 N.M. 86, 1967 -NMSC- 108
Opinion Judge:[11] Noble
Party Name:Bennie TAPIA and Western Causalty and Surety Company, Plaintiffs- Appellees, v. PANHANDLE STEEL ERECTORS COMPANY and Joe G. Myszkowski, Defendants-Appellants.
Attorney:Sutin & Jones, Albuquerque, for appellants., Lorenzo A. Chavez, Melvin L. Robins, Albuquerque, for Bennie Tapia., Toulouse, Ruud, Gallagher & Walters, J. E. Casados, Albuquerque, for Western Casualty. [7] LORENZO A. CHAVEZ, MELVIN L. ROBINS, Albuquerque, New Mexico, Attorneys for Bennie Tapia. [...
Case Date:May 08, 1967
Court:Supreme Court of New Mexico

Page 625

428 P.2d 625 (N.M. 1967)

78 N.M. 86, 1967 -NMSC- 108

Bennie TAPIA and Western Causalty and Surety Company, Plaintiffs- Appellees,


PANHANDLE STEEL ERECTORS COMPANY and Joe G. Myszkowski, Defendants-Appellants.

No. 8167.

Supreme Court of New Mexico.

May 8, 1967

Page 626

Rehearing Denied June 26, 1967.

Page 627

[78 N.M. 88] Sutin & Jones, Albuquerque, for appellants.

Lorenzo A. Chavez, Melvin L. Robins, Albuquerque, for Bennie Tapia.

Toulouse, Ruud, Gallagher & Walters, J. E. Casados, Albuquerque, for Western Casualty.


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 x 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 2x 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 x 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 [78 N.M. 89]

Page 628

evidence is undisputed that Tapia's own conduct was the sole cause of his fall.

Proof that Myszkowski put into place the particular 2 x 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 x 4 or 2 x 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 x 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 x 4's between them. Defendants contend that because Tapia admitted on cross-examination that he did not actually see Myszkowski place the 2 x 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...

To continue reading