Jaramillo, 1981โNMCAโ030, ยถ 23, 95 N.M. 728, 625 P.2d 1245. {15} Examples of tangible safety devices that lessen a specific danger include the following: goggles used to protect workers' eyes from flying particles, Pino v. Ozark Smelting & Mining Co., 1930โNMSCโ057, ยถยถ 5, 14, 35 N.M. 87, 290 P. 409 ; guard rails on a platform to protect workers from falling, Thwaits v. Kennecott Copper Corp., Chino Mines Div., 1948โNMSCโ019, ยถยถ 13, 18, 52 N.M. 107, 192 P.2d 553 ; a gas indicator to give notice of the presence of deadly gases, Apodaca v. Allison & Haney, 1953โNMSCโ048, ยถยถ 12, 21, 57 N.M. 315, 258 P.2d 711 ; cable clamps to prevent a drill cable from falling into a water well and entangling a worker, Flippo v. Martin, 1948โNMSCโ060, ยถยถ 2, 3, 7, 52 N.M. 402, 200 P.2d 366 ; a rear view mirror on a tractor that allowed the operator to see behind him or her, Martinez, 1983โNMCAโ063, ยถยถ 12, 16, 100 N.M. 8, 664 P.2d 1021 ; a manhole cover to protect workers from falling into an open manhole, Jaramillo, 1981โNMCAโ030, ยถ 4, 95 N.M. 728, 625 P.2d 1245. {16} โHowever, not all things which promote safety can be considered as safety devices, and even those things which might be safety devices for one purpose may not be so for another purpose.โ
"While a general custom or usage cannot be shown by evidence of particular transactions, unless sufficiently numerous to indicate a regular course of business, or by evidence of the practice of a single individual, it is permissible to show specific instances in which a usage has not been recognized in order to show its nonexistence, or to contradict evidence of its existence." A review of the decisions of this court show that both methods have been used to prove "general use" under the Workmen's Compensation Act. Cf. Jones v. International Minerals Chemical Corporation, 53 N.M. 127, 202 P.2d 1080, where specific uses by individual potash companies were set forth in evidence; and, Apodaca v. Allison Haney, 57 N.M. 315, 258 P.2d 711, where the general practice of contractors was put in evidence. We hold that witnesses qualified to do so may testify directly as to general use of safety devices in an industry and are not restricted to giving particular examples thereof.
What is a reasonable safety device is a factual question to be decided by the fact finder. Apodaca v. Allison Haney, 57 N.M. 315, 258 P.2d 711 (1953), involved a device to give notice of deadly gases; Flippo v. Martin, 52 N.M. 402, 200 P.2d 366 (1948), involved a clamp to hold a cable; Pino v. Ozark Smelting Mining Co., 35 N.M. 87, 290 P. 409 (1930), involved goggles to protect the worker's eyes. In each of the preceding three citations, the question of a reasonable safety device was a factual question.
Dickerson v. Farmer's Electric Coop., Inc., 67 N.M. 23, 350 P.2d 1037; Wright v. Schultz, 55 N.M. 261, 231 P.2d 937. In Apodaca v. Allison Haney, 57 N.M. 315, 258 P.2d 711, we stated: "Actually, the safety statute itself makes the case one of negligence โ negligent failure of the employer to supply reasonable safety devices `in general use' for the protection of the workmen.
We find no error in the increased award. See Apodaca v. Allison Haney, 57 N.M. 315, 258 P.2d 711; Briggs v. Zia Company, 63 N.M. 148, 315 P.2d 217; Romero v. H.A. Lott, Inc., 70 N.M. 40, 369 P.2d 777. There is complaint that excessive attorney fees were allowed.
We agree with the rule stated by claimant, that where a verdict is supported by substantial evidence it will not be disturbed on appeal. The other well-recognized rule of appellate practice is that where a verdict is attacked on appeal as not being supported by substantial evidence, we must view the evidence, and all inferences flowing therefrom, in a light most favorable to appellee, and to the validity of the verdict. (Apodaca v. Allison Haney, 57 N.M. 315, 258 P.2d 711; Ruiz v. Hedges, 69 N.M. 75, 364 P.2d 136.) Chief reliance is placed by counsel for defendant on the case of Barber v. Los Alamos Beverage Corporation, 65 N.M. 323, 337 P.2d 394.
We have examined the testimony and find not one word which supports any conclusion except that it occurred in the northbound lane, being travelled by Scott and his truck. True, one witness refused to say where the point of impact was, claiming that he could not fix it, but fixing an "area of impact" some 8 feet in diameter which straddled the center line. Considering the testimony in the aspect most favorable to plaintiff, Apodaca v. Allison Haney, 57 N.M. 315, 258 P.2d 711, it in no way contradicts the evidence in the record that the point of impact was in the northbound lane, nor is it substantial evidence upon which a finding could be based that the point of impact was not in the northbound lane. The accident must have occurred when the left side of decedent's car came over the center line and was struck by the left front fender and bumper of the truck being driven by Scott.
We have held that custom or usage is a matter of fact and not of opinion. Briggs v. The Zia Company, 63 N.M. 148, 315 P.2d 217; but, that proof of the fact may be established either by testimony of specific uses, Jones v. International Minerals and Chemical Corporation, 53 N.M. 127, 202 P.2d 1080, or by evidence of general practice of contractors, Apodaca v. Allison Haney, 57 N.M. 315, 258 P.2d 711. See Briggs v. The Zia Company, supra.
First, that in a case where a verdict is attacked on appeal as not being supported by substantial evidence, we must view the evidence and all inferences flowing therefrom in a light most favorable to appellee and to the validity of the verdict. Apodaca v. Allison Haney, 57 N.M. 315, 258 P.2d 711. Second, if there was no substantial evidence to support a finding of total and permanent disability, to instruct thereon would inject a false issue into the case, and be error. Jackson v. Deming Ice Electric Co., 26 N.M. 3, 189 P. 654; Pitner v. Loya, 67 N.M. 1, 350 P.2d 230. In the case of Rhodes v. Cottle Construction Company, 68 N.M. 17, 357 P.2d 672, 674, decided December 13, 1960, we defined "total disability" as follows:
Following the denial of defendant's motion, he proceeded to introduce evidence devoted principally to the claimed delay on the part of the association to promptly gather, harvest and haul his onions, together with some evidence as to the handling thereof after their shipment on the railway. The motion was not renewed at the close of the defendant's case, nor at any other time in the proceedings, and therefore, under the rule announced in Apodaca v. Allison Haney, 1953, 57 N.M. 315, 258 P.2d 711, and Bondanza v. Matteucci, 1955, 59 N.M. 354, 284 P.2d 1024, any error (if such it was) on the part of the trial court to grant the motion was waived. However, even though this claim of error need not be considered, we have carefully examined the transcript together with the articles of incorporation, by-laws and the marketing agreement, and feel that, when they are considered together with the circumstances, the intention of the parties, and the provisions of the sections of the statute involved (being particularly ยงยง 45-14-3(e), 45-14-6(c), and 45-14-16, N.M.S.A., 1953 Comp.), it is obvious that the relationship created was that of principal and agent, or that the association is a bargaining agent, not an independent enterprise.