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Tijerina v. Mendoza6/10/1998
From the 365th Judicial District Court, Dimmit County, Texas
Trial Court No. 95-04-08339-CV
Honorable Amado Abascal, Judge Presiding
AFFIRMED
The issues of this personal injury case concern juror misconduct, the exclusion of expert testimony, and contributory negligence. We affirm.
Factual Background
Landowners hired two subcontractors in the course of constructing a building on their property. Armando's Welding, Tijerina and Torrez's employer, was hired to construct and install several steel trusses. J.F. Ralston, Inc., Mendoza's employer, was hired to provide a winch truck for lifting the trusses into place atop upright poles attached to a concrete slab.
To raise the trusses, Mendoza attached a metal pipe, called a "stinger," to the winch truck. Torres then attached the stinger to a truss with a chain and hook. Mendoza, operating the winch, raised the truss up, Tijerina and Torrez climbed ladders and guided the truss into place on top of the uprights into a "saddle." Tijerina would "tack weld" one side of the truss while Torrez assured that the truss was level. Tijerina then completed the weld by placing three beads of weld at the juncture of the truss at each upright. When Tijerina was about finished with the third bead on the second upright, Mendoza would back up the winch truck a bit and give the stinger some slack. Torres would climb the ladder, unhook the stinger from the truss, and Mendoza would lower the stinger to repeat the process for the next truss.
The first three trusses were installed in this manner without incident. During the welding of the fourth truss, Tijerina welded three beads on the first upright and had almost completed the weld on the other upright when the accident occurred, the truss fell, injuring Tijerina and Torrez. The cause of the accident was disputed.
Alvaro Tijerina, appellant's brother, related that Mendoza had been impatient with the process, stating: "Right after the second truss, he came up to me and said that we needed to hurry up because we were taking too long to do it. That it was costing Johnny $45 or $50 an hour for the truck." Alvaro testified that Torrez had unhooked the stinger from the fourth truss and was starting down the ladder. "He was about halfway down when the truck rolled back and hit the stinger, and at that time, Danny was about finished welding, too. He had just let go of the stinger, and the truss hit him in the chest." Mendoza, on the other hand, contended that the weld on the fourth truss was not a good weld and it broke loose when Torrez unhooked the chain.
Tijerina was wearing his welding helmet and did not see what was coming at him. The weld on the truss broke, and the truss slammed into Tijerina's chest, knocking him head-first into the cement slab fifteen feet below. It also knocked Torrez off his ladder. Both men sustained injuries and were hospitalized.
Tijerina and Torrez sued J.F. Ralston, Inc. and Mendoza, individually, for negligence. One of the jurors, Ricardo Cruz, admitted during voir dire that he had numerous prior conversations with the defendants. During the trial, Cruz and Mendoza had what appellant describes as "an extended conversation" during a recess. When this was brought to Judge Abascal's attention, Mendoza admitted greeting Cruz and giving him a "brotherhood" handshake, but denied having any further discussion. Plaintiffs' motion for a mistrial was denied. Ten jurors, including Cruz, found plaintiffs each 50% negligent and the cause of their injuries. The court entered judgment in favor of Mendoza and denied Tijerina's motion for new trial based upon juror misconduct.
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