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Associated Industrial Contractors2/3/2004
rience of the trial judge.
III.
Defendant argues that, even apart from the absence of expert testimony, the evidence is insufficient to support the trial court's finding that it was negligent. The trial judge's findings of fact are conclusive on appeal if supported by competent evidence, even if the record contains evidence to the contrary. Huff v. Autos Unlimited, Inc., 124 N.C. App. 410, 413, 477 S.E.2d 86, 89 (1996), cert. denied, 346 N.C. 279, 487 S.E.2d 546 (1997). Our examination of the record reveals that competent evidence supported the trial court's finding that Fleming was negligent. It is undisputed that the south line of columns, although virtually straight, was skewed, i.e., not parallel to the north line, which was a precise 180* line extending from the main building. AIC argued that Fleming's employees had erred in making the calculations described by Mr. Register when it came to the south wall. Fleming contended to the contrary that the south columns were correctly placed when Mr. Register and his assistant completed the survey and became misaligned when AIC moved the batter board and recreated the center points. The parties agree that either AIC or Fleming was responsible for the error.
In support of its claim that the error was committed by Fleming, AIC offered the testimony of its project manager, Scott Flanigan. Mr. Flanigan is a structural engineer and has been licensed as a professional engineer. At the time of his testimony, he had overseen nearly 30 projects. Mr. Flanigan testified that the south columns were "in a straight line. Again, if it was an error that we made - if we just placed the columns willy-nilly, I'd expect one column to be up, one to be down, another one to be down, another one to be back up." Mr. Register confirmed that "they was in a straight line at a skew" extending out from the established point on the main building.
In response to Fleming's suggestion that the error occurred when AIC moved one of the batter boards, Mr. Flanigan and other witnesses testified that three of the south columns were already placed based on the Fleming offset points when the board was moved and that only the fourth column could have been affected by the moving of the batter board. Yet, the evidence established that all four columns were misaligned.
Fleming points to two pieces of evidence that it contends conclusively establish that it was not negligent. First, it claims that "Mr. Register was able to confirm that the lines were straight by flopping the transit without moving the base. This allowed him to confirm the one-hundred eighty (180) degree angles between the points on either side of his equipment." The evidence does not, however, establish conclusively that Mr. Register did confirm the accuracy of the work. Mr. Register testified that his assistant was operating the transit device (also called "the instrument") while Mr. Register was putting the nails into the ground:
Q: Would you set the points in the ground, or would Mr. Davis set the points in the ground?
A: He ran the instrument. I set the points, but also I did look back through the instrument to confirm straight lines through most of these points.
(Emphasis added) Although Mr. Davis was thus the person responsible for establishing the lines and angles, he did not testify. While Mr. Register's testimony indicates that he checked Mr. Davis' work for "most of these points," that testimony would permit a finding that he did not check all points. Since Mr. Register never testified that he confirmed that the south line of columns was a 180ยง straight line, his testimony cannot establish that the figures were accurate on the south
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