Wray M. Scott Company v. Daigle

• Decision Date: 29 October 1962
• Docket Number: No. 17051.,17051.
• Parties: WRAY M. SCOTT COMPANY, Inc., a Corporation, Appellant, v. Carolyn DAIGLE, Administratrix of the Estate of Zenie Daigle, Deceased, and Peter Kiewit Sons Company, a Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

309 F.2d 105 (1962)

WRAY M. SCOTT COMPANY, Inc., a Corporation, Appellant, v. Carolyn DAIGLE, Administratrix of the Estate of Zenie Daigle, Deceased, and Peter Kiewit Sons Company, a Corporation, Appellees.

No. 17051.

United States Court of Appeals Eighth Circuit.

October 29, 1962.

John R. Barton, Omaha, Neb., for appellant. Raymond M. Crossman, Omaha, Neb., on the brief.

Alfred A. Fiedler, Omaha, Neb., for appellees. Alto V. Watson, Beaumont, Tex., on the brief.

Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.

MATTHES, Circuit Judge.

Zenie Daigle was an employee of Peter Kiewit Sons Company, and on August 4, 1959, while engaged with others in the construction of cement bins in Louisville, Nebraska, fell and sustained injuries which caused his immediate death. At that time Daigle was a citizen of the State of Texas. Daigle's widow, Carolyn, was appointed as administratrix of his estate by the County Court of Jefferson County, Texas. The administratrix instituted this action in the United States District Court for the District of Nebraska against Wray M. Scott Company, Inc., the appellant herein, for the purpose of recovering for the alleged wrongful death of Daigle.¹ In brief, the pleaded theory of liability of Scott was that it had furnished to Kiewit a faulty and defective lead cable; that Daigle was using said cable and because of the defect therein, he was caused to fall to his death.² Plaintiff did not allege negligence on the part of Kiewit but joined it as a party defendant because it had made payments to plaintiff under the Nebraska Workmen's Compensation Law and was subrogated to plaintiff's right of recovery against Scott to the extent of the payments made by Kiewit.

Plaintiff recovered a verdict against Scott in the amount of $26,228.82. The court entered judgment thereon and further directed that $4,805 thereof be paid to Kiewit's insurer.

Jurisdiction has been established by reason of the amount involved and diversity of citizenship of the parties.

Scott, at the conclusion of the whole case, moved for a directed verdict, and after the verdict and judgment, moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. These motions were denied. Here, Scott's principal point is that the court erred in denying the motions and in submitting the case to the jury. The posture of the case in this court is such that we are required to determine whether the evidence was sufficient to permit the jury to resolve these questions: (1) was the cable in question in a defective and dangerous condition at the time Scott delivered it to Kiewit; could Scott have discovered the defect in the cable by timely and proper inspection before delivering the same to Kiewit and to have warned Kiewit or its employees of the dangerous and unsafe condition of the cable; and (2) was the defective cable the proximate cause of Daigle's death? We observe that there is no issue or controversy concerning the dangerous and unsafe condition of the cable as the result of the defective splice. Indeed, Scott frankly concedes in its brief that "the manner in which the cable had been joined, was improper and defective; that is, someone had merely overlapped the two bare ends of the cable and then wrapped that area of the cable with friction tape."

While not raised by the parties, we are nevertheless confronted with the question whether the state or federal standard or test of the sufficiency of the evidence controls in a diversity case in federal court; a question that has not been resolved by the Supreme Court. Dick v. New York Life Ins. Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935, and cases cited; 5 Moore's Federal Practice (2 Ed. 1951) § 38.10, 1961 Cumulative Supplement, pp. 7 and 8. Since Dick, we have refrained from making determination of the question in at least three cases where the state and federal standards are substantially alike and where the parties assumed that the state test controlled. Ford Motor Co. v. Mondragon, 8 Cir., 271 F.2d 342; Lewis v. Nelson, 8 Cir., 277 F.2d 207; Hanson v. Ford Motor Co., 8 Cir., 278 F.2d 586.

The Supreme Court of Nebraska has enunciated the test applied in that state in numerous cases. That Court's view is typified in the following pronouncements:

Graves v. Bednar, 171 Neb. 499, 503, 107 N.W.2d 12, 15:

"In Owen v. Moore, 166 Neb. 239, 88 N.W.2d 768, we held: `In a case where different minds may reasonably draw different conclusions or inferences from the adduced evidence, or if there is a conflict in the evidence as to whether or not the evidence establishes negligence or contributory negligence, and the degree thereof, when one is compared with the other, such issues must be submitted to a jury.\'

* * * * * *

"In Griess v. Borchers, 161 Neb. 217, 72 N.W.2d 820, 822, we held: `Negligence is a question of fact and may be proved by circumstantial evidence. All the law requires is that the facts and circumstances proved, together with the inferences that may be legitimately drawn from them, shall indicate, with reasonable certainty, the negligent act complained of. * * *."

Snyder v. Farmers Irr. Dist., 157 Neb. 771, 780-781, 61 N.W.2d 557, 563:

"`Where different minds may draw different inferences or conclusions from the facts proved, or if there is a conflict in the evidence, the matter at issue must be submitted to the jury to be determined; but where the evidence is undisputed, and but one reasonable inference can be drawn from the facts, the question is one of law for the court.\' * * * `It is not the province of this court in reviewing the record in an action at law to resolve conflicts in or weigh the evidence. It is pre-or weigh the evidence.

"`It is presumed in such an action that controverted facts were decided by the jury in favor of the successful party, and its finding based on conflicting evidence will not be disturbed unless clearly wrong.\'"

See also Baer v. Schaap, 168 Neb. 578, 587, 97 N.W.2d 207, 213; on rehearing, judgment of trial court reversed in 171 Neb. 347, 106 N.W.2d 468.

In Howell v. Robinson Iron & Metal Co., 173 Neb. 445, 113 N.W.2d 584, 587, the Nebraska Court dealt specifically with circumstantial evidence in the following language:

"From the various pronouncements on this subject it appears that two guiding rules have emanated. One is as follows: `Negligence is a question of fact and may be proved by circumstantial evidence and physical facts. All that the law requires is that the facts and circumstances proved, together with the inferences that may be properly drawn therefrom, shall indicate with reasonable certainty the negligent act charged.\' Gilliland v. Wood, 158 Neb. 286, 63 N.W.2d 147. See, also, Shields v. County of Buffalo, 161 Neb. 34, 71 N.W.2d 701.

"The other, which is found in Bedford v. Herman, 158 Neb. 400, 63 N.W.2d 772, is the following: `In order for circumstantial evidence to be sufficient to require the submission of an issue of negligence to a jury it must be such that a reasonable inference of negligence arises from the circumstances established. If such evidence is susceptible to any other reasonable inference, inconsistent with the inference of negligence on the part of the party charged, it is insufficient to carry the case to the jury.\'"

The federal standard to be applied in determining the sufficiency of the evidence to support the verdict in a diversity case, as stated in Coca-Cola Bottling Co. of Black Hills v. Hubbard, 8 Cir., 203 F.2d 859, includes the following rules: (1) All facts which plaintiff's evidence reasonably tends to prove must be assumed to have been established, and all inferences fairly deducible from such facts must be drawn in his favor; (2) the verdict should be directed only where all the evidence is on one side or so overwhelmingly on one side as to leave no doubt what the fact is; (3) the question of negligence is usually one of fact for the jury, and it is only where the evidence, even though it be uncontradicted, is such that all reasonable men must draw the same conclusion from it that the question of negligence becomes one of law for the court; (4) where inconsistent inferences reasonably may be drawn from the evidence, it is for the jury to determine which of the inferences shall be drawn; (5) when the sufficiency of the evidence to make a case for the jury ...