(dissenting).
I cannot agree that the majority’s interpretation of the affidavit is the only way it can be viewed. This is a summary judgment case. The rule is stated in Binns v. Schoenbrun, 81 N.M. 489, 468 P.2d 890 (Ct.App.1970) as follows:
“In determining the propriety of granting a motion for summary judgment, all reasonable inferences must be construed in favor of the party against whom the summary judgment is sought and when reasonable minds might differ * * * the matter is issuable before a jury. * * * Where the slightest doubt exists as to the material facts summary judgment should not be granted. * * *»
The majority places great emphasis on “not displaced,” “remained in the same position after the accident as it occupied prior to the accident” and “in the same location.”
The inference relied on by the majority could easily have been viewed in the opposite. There is no showing of height prior to the accident. There is no showing of height at the time of the accident except by plaintiffs’ co-employee. There is no showing that from the time of the accident until two days later that the height was not changed.
Certainly the language “After the crane touched said cable the cable remained in the same position it occupied prior to the accident” is not conclusive as to height in this context. That statement tells us that the accident did not alter the height of the cable; but it does not tell us that no alteration followed after the accident and prior to the measurement. The affidavit could remain unaltered and be true even if in fact there was some alteration between the accident and the measurement two days later.
I respectfully dissent.