Cartwright v. Traylor Bros., Inc.

• Decision Date: 30 March 1961
• Docket Number: No. 13135.,13135.
• Citation: 288 F.2d 196
• Parties: Margaret CARTWRIGHT, Administrator to Collect of the Estate of Wayne Kiester, Deceased, Plaintiff-Appellant, v. TRAYLOR BROS., INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

288 F.2d 196 (1961)

Margaret CARTWRIGHT, Administrator to Collect of the Estate of Wayne Kiester, Deceased, Plaintiff-Appellant, v. TRAYLOR BROS., INC., Defendant-Appellee.

No. 13135.

United States Court of Appeals Seventh Circuit.

March 30, 1961.

John L. Carroll, Edwin W. Johnson, Evansville, Ind., Johnson & Carroll, Evansville, Ind., of counsel, for appellant.

Herman L. McCray, Evansville, Ind., McCray & Clark, Evansville, Ind., of counsel, for appellee.

Before HASTINGS, Chief Judge, and MAJOR and KNOCH, Circuit Judges.

KNOCH, Circuit Judge.

Plaintiff brought this suit to recover damages for the alleged wrongful death of Wayne Kiester. At the conclusion of the plaintiff's case, the defendant moved for a directed verdict in its favor. The motion was granted, and this appeal followed.

The instruction to the jury read in part:

"Members of the jury, the plaintiff in this case sued the defendant to recover damages which plaintiff claims to be due for the reason that defendant while in possession of or should have been in possession of the Pigeon Creek Pumping Station on September 4, 1957, and that defendant while in such station was negligent in certain acts of commission or omission.

"There is not in this case legal evidence which supports the action or which will support any verdict for the plaintiff and against the defendant."

The facts are largely undisputed. Defendant had a contract with the City of Evansville, Indiana, to construct a pumping station to handle raw sewage. Mr. Kiester was the resident engineer for the consulting engineers on the project. At the time of the accident out of which this suit arose, about 97% of the entire job had been completed, and about 83% of the ventilating system had been completed.

On September 4, 1957, Mr. Kiester had met with Louis Duncan, the City Sewer Superintendent; Jack Buttram, an employee of Knight Electric Company; and John Zimmer, an employee of defendant; to replace steel tapes on the float controls which regulated the speed of the pump motors. There was a ventilating system to exhaust sewer gasses which might collect in the bottom of the wet well of the pumping station. There was evidence to show that at the time of the accident, the ventilating system was not functioning because the wire screen at the discharge end was clogged with dirt so that sewer gas could not be expelled.

Mr. Kiester, while in the station, looked down and saw that Mr. Duncan was lying on the floor of the wet well. He ran down the stairway into the well and collapsed while picking up Mr. Duncan. It was 30 to 45 minutes before Mr. Kiester was removed from the well. He died the same day as a result of sewer gas poisoning.

The complaint here charged defendant with breach of its duty to use due care toward Mr. Kiester. Plaintiff's evidence showed that the work had not been completed, had not been formally accepted by the City, had not been paid for, and that defendant's employee, Mr. Zimmer, was on the premises at the time of the accident. The evidence also indicated that the station was being used by the City, and that the City for about 2½ months, had kept the station locked. During that period, defendant gained access to the station by having a City employee unlock the door. Thus defendant argues that the...