dissenting.
I respectfully dissent from the majority opinion and find that there was substantial evidence to support the submission of negligence against Condaire and Sachs. While I would agree with the majority’s discussion of the holdings in Killian, Mino, and Williamson, supra, I respectfully disagree with the majority’s application of those cases to the instant cause. While I disagree with the majority on this, I would find the trial court committed reversible error in submitting Erdman’s verdict directing instruction in that the instruction fails to state a necessary element of his claim for damages. Therefore, I would reverse and remand this case for a new trial.
Our review of the denial of a motion for directed verdict and a motion for judgment notwithstanding the verdict is essentially the same. Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). A directed verdict or judgment notwithstanding the verdict is appropriate if the plaintiff fails to make a submissible case. Boyer v. Sinclair & Rush, Inc., 67 S.W.3d 627, 632 (Mo.App. E.D.2002). This Court will reverse the jury’s verdict for insufficient evidence only when there is a complete absence of probative fact to support its decision. Burns Nat. Lock Installation Co., Inc. v. American Family Mut. Ins. Co., 61 S.W.3d 262, 271 (Mo.App. E.D.2001).
On appeal in a jury-tried case, we review the evidence and reasonable inferences therefrom in a light most favorable to the jury’s verdict, disregarding evidence to the contrary. Dubinsky v. U.S. Elevator Corp., 22 S.W.3d 747, 749 (Mo.App. E.D.2000).
The question whether the evidence in a case is substantial and whether the inferences drawn are reasonable present questions of law. Mogley v. Fleming, 11 S.W.3d 740, 747 (Mo.App. E.D.1999). Where reasonable minds can differ on the question before the jury, we do not disturb the jury’s verdict. Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 461 (Mo. banc 1998).
The existence of only circumstantial evidence on a material issue does not bar recovery of and by itself. Resnik v. Blue Cross and Blue Shield of Missouri, 912 S.W.2d 567, 570 (Mo.App. E.D.1995). A plaintiff may prove essential facts by cir*93cumstantial evidence so as long as the facts proved and the conclusions to be drawn are of such a nature and are so related to each other that the conclusions may be fairly inferred. Schumacher v. Barker, 948 S.W.2d 166, 168 (Mo.App. E.D.1997). As with any type of evidence, the circumstantial evidence must be substantial, and it must establish the desired inference with such certainty as to cause it to be the more reasonable and probable of the conclusions to be drawn. Resnik, 912 S.W.2d at 571.
The majority relies on Mino, finding it controlling, in that it sets forth the prerequisites an employee must prove in order to find a subcontractor liable for his or her injury on a construction site. In Mino, it is important to note that the court was affirming a jury verdict in favor of the subcontractor, based on its own credibility determinations and all of the evidence presented, holding that the defendant-subcontractor owed no duty to the injured plaintiff-subcontractor. Assuming that Mino controls, I believe the majority erroneously applied its holding in the instant case.
As per the holding in Mino, “the contractor is liable where he [sic] is in control of and has charge of the work and the dangerous condition is attributable to wrongful or negligent acts of his employees while the work is in progress.” Mino, 785 S.W.2d at 561. The majority first addresses whether Condaire and Sachs created the dangerous condition. The majority believes there was no substantial evidence that Condaire and Sachs created the dangerous condition because Fru-Con created the opening into which Erdman fell. While the creation of a load cell opening may in and of itself be a dangerous condition, I believe the uncovered, or lack of barricading or warning of the opening, was the dangerous condition in this case.
Erdman presented uncontradicted testimony that each subcontractor possessed an equal responsibility for safety on the site. Prior to beginning work, Condaire and Sachs signed a contract which specifically provided each subcontractor possessed an equal responsibility for safety on the site. Moreover, Fru-Con provided a safety seminar prior to the beginning of the project where each person on the site received specific training about the necessity of replacing any removed floor coverings after finishing work in a particular opening.
Erdman also presented evidence that Condaire and Sachs were the only subcontractors that worked in the load cell openings. This is distinguishable from the Mino court’s finding that the location of the incident was not in an area of work that was assigned to the defendant-subcontractor. Mino, 785 S.W.2d at 561. The present facts are more akin to Williamson, where the defendant in that case was actually working on the hole through which the plaintiff fell. Williamson v. Cox, 844 S.W.2d 95, 97 (Mo.App. S.D.1992). Here it is undisputed that the load cell area was assigned to Condaire and Sachs, and they worked exclusively in that area.
When work began in the area where Erdman ultimately fell, wood floor coverings covered the load cell openings around the vessel. In order to place the load cells and drill the necessary holes in the tank feet, load cell, and I-beam, it was necessary to remove the tarp from the vessel and remove the floor coverings. Despite testimony that other subcontractors worked in the reactor room, no contradictory evidence was presented that any subcontractors, other than Condaire or Sachs, worked in the load cell openings.
In addition, William Leveritt (hereinafter, “Leveritt”) testified that the only subcontractors that had authority to work in *94the load cell openings were Condaire and Sachs. Leveritt also testified that no other subcontractor had any authority to enter the load cell openings while Condaire and Sachs worked on a different aspect of the project. Leveritt stated there was a distinction between subcontractors having access to the reactor room in general and having access to the load cell openings. One of Sachs’s electricians also testified that he knew of no reason that any other subcontractor would work in the load cell openings.
Moreover, Erdman also presented un-contradicted evidence about the industry practice with regard to trades sharing a work area. One of ICS’s foremen testified it is the general custom and practice that trades do not tolerate individuals from other trades performing their work or handling their equipment. A reasonable inference from this uncontradicted testimony is that even though other subcontractors had access to the reactor room, no one performed any work in the load cell openings or moved the wood floor coverings in conformance with industry practice.
Erdman presented substantial evidence of Condaire and Sachs safety obligations and training, their exclusive authority to work in the load cell opening, their exclusive work in the opening, and the industry standards with regard to working in another trade’s area. All of this evidence supports a reasonable conclusion Condaire and Sachs created the dangerous condition. Thus, Erdman made a submissible case as to the creation of the dangerous condition. Moreover, this provided a basis for the jury to find that before Condaire or Sachs left the area, they should have taken steps to properly cover, barricade, or warn of the danger presented by the load cell opening. See Williamson, 844 S.W.2d at 97.
Second, the majority states that the work was substantially complete at the time of the accident, and therefore, the work was no longer in progress. In Mino, it was undisputed that the defendant-subcontractor’s work was substantially complete at the time of the accident as well. Mino, 785 S.W.2d at 559. However, Mino can be distinguished in that here the parties disputed whether the work in the load cell openings was substantially complete at the time of the accident. Condaire and Sachs believe the work was substantially complete on June 23, 1998, approximately twenty-three days prior to Erdman’s accident.
However, Erdman presented testimony that neither Fru-Con nor Sigma had accepted Condaire’s and Sachs’s work on the vessel as finished at that time. William Welch, a Fru-Con employee, stated that the vessels were not accepted by Fru-Con nor Sigma as a finished project as of June 23, 1998. Welch testified that on July 16, 1998, the vessel was not operational despite Condaire and Sachs moving on to install other load cells in another room. In addition to working on the next set of load cells, a Sachs electrician testified that on July 27, 1998, he and another electrician returned to the area where Erdman was injured and removed the load cells because there was additional work scheduled for the vessel. Again, this circumstantial evidence provided to the jury was substantial. It established the desired inference with such certainty as to cause it to be the more reasonable and probable conclusion that the work was not substantially complete at the time of the accident, further evidencing Condaire and Sachs’s control over the area.
Third, Mino requires that Erdman prove Condaire and Sachs had responsibility and control of the area where he was injured. As stated earlier, based upon *95circumstantial evidence, it was a reasonable conclusion that Condaire and Sachs had control over the area where Erdman was injured. Despite other subcontractors having access to the reactor room, Leveritt testified that there was a distinction between having access to the room and access to the load cell openings. No one other than Condaire or Sachs performed any work in the load cell openings and no trade had authority to enter the load cell openings after they moved on to work in another area. Finally, and most importantly, Sachs returned to the load cell opening after the accident in order to perform additional work. This is substantial evidence that Condaire and Sachs had responsibility and control over the load cell openings.
While this is a close case, it must be mentioned that on appeal, we do not weigh the evidence, determine credibility of the witnesses, or resolve conflicting factual testimony. Miller v. Gillespie, 853 S.W.2d 842, 844 (Mo.App. E.D.1993). Rather, it is the jury who is the sole judge when it comes to credibility of the witnesses, and the resulting weight and value to be given to any witness’s testimony. Roark Motor Lodge Interval Sales Corp. v. Lindner, 779 S.W.2d 684, 686 (Mo.App. E.D.1989). The jury is in a better position not only to judge the credibility of witnesses directly but also them sincerity and character as well as intangibles that may not be reflected in the record. State ex rel. Webster v. Cornelius, 729 S.W.2d 60, 65 (Mo.App. E.D.1987). It may believe or disbelieve any part of that testimony. Roark, 779 S.W.2d at 686.
The difficulty for appellate courts and specifically here, is that we do not have the benefit of knowing who the jury believed or disbelieved, and we cannot make credibility determinations based on a cold record. Howevei’, we do know the jury entered judgment in Erdman’s favor and where reasonable minds can differ on the question before the jury, we will not disturb the jury’s verdict. Seitz, 959 S.W.2d at 461. In this case, I believe reasonable minds could differ on the question of subcontractor liability before the jury, and I would find Erdman made a submissible case of negligence against Condaire and Sachs.
Condaire and Sachs’s second points on appeal claim the trial court committed prejudicial and reversible error in submitting Erdman’s verdict directing instruction. Condaire and Sachs argue that Instruction No. 7 did not submit an essential element of Erdman’s claim.
We review a trial court’s refusal to submit an instruction for abuse of discretion. Quinn v. Lenau, 996 S.W.2d 564, 568 (Mo.App. E.D.1999). In considering the propriety of a profered instruction, we review the evidence in the light most favorable to the submission of the instruction, keeping in mind a party is entitled to an instruction on any theory supported by the evidence. Kauzlarich v. Atchison, Topeka, and Santa Fe Ry. Co., 910 S.W.2d 254, 258 (Mo. banc 1995); Shop ‘N Save Warehouse Foods, Inc. v. Soffer, 918 S.W.2d 851, 862 (Mo.App. E.D.1996). “To be charged to the jury, an issue submitted in an instruction ‘must be supported by substantial evidence from which the jury reasonably could find [the] issue.’” Kauzlarich, 910 S.W.2d at 258 (quoting Egelhoff v. Holt, 875 S.W.2d 543, 548 (Mo. banc 1994)).
We will not reverse a verdict due to instructional error, including the refusal to give an instruction, unless the error was prejudicial. Higby v. Wein, 996 S.W.2d 95, 97 (Mo.App. E.D.1999). To establish reversible error, the complaining party must show that, under all the evidence, the instruction was a misdirection to the jury resulting in prejudicial error. Hackman v. *96Kindrick, 882 S.W.2d 157, 159 (Mo.App. E.D.1994)
The trial court submitted the following verdict directing instruction tendered by Erdman:
Your verdict must be for plaintiff Todd J. Erdman if you believe:
First, Condaire, Inc. removed the wooden floor penetration cover from the load cell hole and failed to replace it and as a result the floor was not reasonably safe for those working in the area, or
defendant Condaire, Inc. failed to barricade the open load cell hole and as a result the floor was not reasonably safe for those working in the area, and
Second, defendant Condaire, Inc. failed to use ordinary care to remedy or warn of such unsafe condition, and
Third, as a direct result of such failure, Todd J. Erdman sustained damage.
Condaire and Sachs claim the submission of this instruction constituted reversible and prejudicial error because it misled and misdirected the jury in what they claim is a necessary element of Erdman’s claim, namely, that Condaire and Sachs were in control of and had responsibility for the area where Erdman was injured. I agree.
Mino addresses this contention and is controlling. In Mino, the Western District explicitly approved the following jury instruction which was submitted to the jury on the issue of subcontractor liability:
In your verdict you must assess a percentage of fault to defendant Porter Roofing Company, whether or not plaintiff Stephen Mino was partly at fault, if you believe:
First, Porter Roofing Company had control and responsibility of the curb and the area within the curb on the roof of the Fireworks building; and Second, either:
Defendant, Porter Roofing Company failed to cover or recover the hole in the Fireworks building with a material that could bear the weight of a man; or
Defendant Porter Roofing Company failed to warn that the hole in the roof of the Fireworks building was covered with a material that could not bear the weight of a man; and
Third, defendant, Porter Roofing Company in any one or more of the respects submitted in paragraph Second was thereby negligent; and
Fourth, as a direct result of such negligence, plaintiff Stephen Mino sustained damage.
Mino, 785 S.W.2d at 560.
The Mino court rejected the plaintiffs argument that he should not have been taxed with the burden of showing the element of control and responsibility over the construction area where he was injured. Id The court held that no case authority existed to extend a subcontractor’s liability to dangerous conditions on the job site that were not under its control or that did not constitute part of the work area assigned to it. Id
The jury instructions tendered by Con-daire and Sachs, which were rejected by the trial court, tracked the language approved by the court in Mino. As I discussed earlier, control is an element of Erdman’s case, on which I believe he submitted substantial evidence. The verdict directing instruction tendered to the jury did not submit this issue which prejudiced Condaire and Sachs. As such, I would find the trial court committed reversible and prejudicial error in instructing the jury; therefore, I would reverse and remand for a new trial. Since I find this *97point dispositive, I will not address the remaining point.