Continental Can Company v. Horton

• Decision Date: 30 December 1957
• Docket Number: No. 15855.,15855.
• Citation: 250 F.2d 637
• Parties: CONTINENTAL CAN COMPANY, Inc., a corporation, Appellant, v. Bernard F. HORTON and LeRoy L. Wade & Son, Inc., a corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

250 F.2d 637 (1957)

CONTINENTAL CAN COMPANY, Inc., a corporation, Appellant, v. Bernard F. HORTON and LeRoy L. Wade & Son, Inc., a corporation, Appellees.

No. 15855.

United States Court of Appeals Eighth Circuit.

December 30, 1957.

COPYRIGHT MATERIAL OMITTED

John L. Barton, Omaha, Neb. (Raymond M. Crossman, Thomas C. Quinlan and John R. Barton, Omaha, Neb., on the brief), for appellant.

George B. Boland, Omaha, Neb. (John F. Brennan and A. Lee Bloomingdale, Omaha, Neb., on the brief), for appellees.

Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTERHOUT, Circuit Judges.

WOODROUGH, Circuit Judge.

This is an appeal from a judgment in favor of plaintiff in a personal injury action.

Bernard F. Horton instituted this action in the United States District Court for Nebraska against Continental Can Company, Inc., to recover damages for personal injuries sustained when a scaffold upon which he was working collapsed. LeRoy Wade & Son, Inc., Horton's employer at the time of this accident, was joined as a party defendant because of subrogation rights for certain payments made to Horton under the Nebraska Compensation Act. R.R.S.1943, ß 48-101 et seq. Federal jurisdiction was established by reason of diversity of citizenship.

In his complaint plaintiff alleged that on December 27, 1954, defendant was engaged in the construction of a manufacturing plant in Omaha, Nebraska; that defendant had supplied a scaffold to the workmen engaged in the plant construction; that on December 27, 1954, while plaintiff was on top of the scaffold, it gave way; and that by reason of the negligence of defendant in failing to erect, construct and maintain the scaffold in a safe, suitable and proper manner, in compliance with the Statutes of the State of Nebraska,¹ plaintiff was precipitated to the floor and was thereby subjected to severe and permanent physical injuries.

Defendant, in its answer, admitted the happening of the accident but denied all allegations of negligence and pleaded that the scaffold was erected by employees of the Wade Corporation and thereafter was borrowed from defendant by various crafts, including the Wade Corporation, for temporary use in connection with their construction of the defendant's plant; that the use of the scaffold by the Wade Corporation and the other crafts was an accommodation only; that the scaffold was a safe, suitable and proper scaffold; and that whatever injuries plaintiff received were due to his own negligence.

Defendant's motions for dismissal, directed verdict and an instructed verdict in its favor were overruled and the case was submitted to the jury on instructions, to which no exceptions were taken. Verdict was returned for plaintiff in the amount of $25,000.00 and judgment was entered accordingly. This appeal followed.

Defendant in seeking reversal contends: (1) that the court erred in overruling its motions for dismissal, directed verdict and judgment notwithstanding the verdict because there was insufficient evidence upon which to submit the case to the jury; (2) that the court erred in allowing the jury to speculate on the issue of negligence when certain inferences sought to be created by plaintiff were not supported by basic proven fact or circumstances; and (3) that plaintiff's negligence was more than slight, was the proximate cause of his injuries, and therefore prevented recovery under Nebraska law.

The controlling issue for determination on this appeal is whether or not the court should have sustained defendant's motion for directed verdict or judgment notwithstanding the verdict. Consideration of that question is governed by Nebraska law, the state where the accident happened, and the jury having found the issues in favor of the plaintiff, we will view the evidence in the light most favorable to him, all conflicts in the evidence being resolved in his favor and if the evidence is sufficient to make a case that must go to the jury, we will not disturb the verdict. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Stephenson v. Steinhauer, 8 Cir., 188 F.2d 432, 434; Burhoop v. Brackhan, 164 Neb. 382, 82 N.W.2d 557; Raile v. Toews, July, 1957, 165 Neb. 184, 185, 84 N.W.2d 199. So viewed, the evidence may be summarized as follows:

It appears from the record that defendant, engaged in the manufacture of cans for commercial use, was having a manufacturing plant constructed at 4133 South 72nd street in Omaha, Nebraska, and that in February, 1954, the building was completed but the operational machinery had not been installed. In February, 1954, LeRoy Wade & Son, Inc., was awarded the contract to unload and install the defendant's heavy machinery, to complete the makeup and installation of the overhead steel structures and install the overhead conveyor lines required in the plant. The contract provided, among other things, that materials purchased and expendable tools used by the Wade Corporation were to be charged to defendant at cost plus 10%; that defendant was to be charged for tools and equipment, which were not expendable and not provided for in the contract, at a rate determined by a specified manual of equipment rates. Scaffolds were not expendable equipment and were not provided for in the contract.

Plaintiff was employed by the Wade Corporation as a structural iron worker and was engaged in the makeup and installation of overhead steel structures and the installation of machinery in defendant's plant until December 27, 1954, the date of this accident.

The scaffold in question was ordered by defendant's plant engineer, on behalf of defendant, for the use of defendant's maintenance men. It was delivered to defendant in January, 1954, and was stored in the Wade Corporation's warehouse together with defendant's other maintenance equipment. Robert Hammond, superintendent of the Wade Corporation testified that about March 1, 1954, Carl Gott, project engineer for defendant, ordered him to assemble the scaffold. Defendant's plant engineer testified that after the scaffold was delivered to the plant site, he objected to its use by the various crafts engaged in constructing the plant and he had it chained and locked to a column to prevent further use, however, within a few days he saw that the scaffold was being used by every craft in the plant, including Wade's men, and it continued in such use throughout the year 1954.

Evidence was presented to the effect that during the week prior to December 27, 1954, the scaffold was not used by Wade's men since they were unloading machinery, installing a hand rail and grading machinery. Plaintiff testified that during the week prior to his injury he saw the scaffold in the possession of defendant's maintenance men. They had disassembled it and were removing it from the main building. On December 22nd or 23rd the scaffold was being used in spray painting the east windows of the plant, although the evidence was in conflict as to whether a paint contractor on the job or defendant's maintenance men were doing the painting. Plaintiff and Wade's superintendent testified that the men painting the windows were not from the paint contractor but were defendant's maintenance men and defendant did not produce evidence to show whether or not its maintenance men had used the scaffold to paint the windows or whether the paint contractor had painted them. Defendant's plant engineer testified that he did not have painters working for the defendant in December, 1954, however, he admitted that it was in the province of defendant's maintenance men to do painting when the job was not of such a large amount that he would call a paint contractor.

Wade's men did not work on December 24, 25, or 26, 1954, and at the commencement of the work day on December 27, the scaffold was standing, with its legs extended 12 to 16 inches, in front of the battery bay next to the east wall. The windows of the battery bay had been spray painted. The scaffold was composed of four and one-half sections giving it an approximate height of 25 feet. The work plan for Wade's men on December 27, included laying the scaffold over on its side and moving it 30 to 40 feet from its position in front of the east windows in order to use it in erecting hangers for the overhead conveyors. Prior to the move, Wade's superintendent mounted the scaffold to look for loose tools. Culiver, plaintiff's supervisor also went to the top of the scaffold, returned to the floor and then directed plaintiff to go up and wire the wooden platforms down so they would not fall when it was moved. Plaintiff went to the top of the scaffold and immediately felt the northeast leg of the scaffold give way. The falling scaffold knocked him against the east wall and he fell to the floor below.

The scaffold was in evidence and examination reveals that it consists of sections and half sections, made of aluminum pipe, which can be placed one upon the other to regulate the height of the scaffold. Each section has an inside diagonal ladder which leads to the section above and the base section (or bottom section) has four legs, each of which is hollow and has four splits at its lower end. These split leg ends are threaded on the inside and each hollow leg fits over a threaded solid shaft, to which the wheel housing and six inch solid rubber wheel is attached in such a manner that the hollow leg will slide up and down on the shaft, thereby allowing the height of each leg to be varied individually. When the leg is extended it is held in place by means of a tension ring or locking ring which slides down the outside of the hollow leg over the split threaded ends and forces the split threaded ends together and against the threaded shaft, thereby preventing the shaft from moving up or down inside the hollow leg. When the tension ring is completely down to its locking position, it is held in place by a small spring lock which catches on the upper lip of the tension ring and holds the ring down and in...