Martin K. Eby Construction Co. v. Neely, 7796.
| Decision Date | 26 April 1965 |
| Docket Number | No. 7796.,7796. |
| Citation | 344 F.2d 482 |
| Parties | MARTIN K. EBY CONSTRUCTION CO., Inc., Appellant, v. Sandra Lee NEELY, by her legal representative and guardian, Cecile V. Neely, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John C. Mott, of McComb, Zarlengo & Mott, Denver, Colo., for appellant.
Kenneth M. Kripke, of Kripke & Friedman, Denver, Colo., for appellee.
Before PICKETT, HILL and SETH, Circuit Judges.
This is a diversity action brought by the Guardian of Sandra Lee Neely, a minor, to recover damages from Martin K. Eby Construction Company, Inc. for the alleged wrongful death of her father, Gary Lee Neely. It was alleged that Neely's death was proximately caused by Eby's negligence in the construction, maintenance and supervision of a scaffold, or platform, located in a missile silo being constructed near Elizabeth, Colorado, for the United States. Eby admitted the death of Neely but denied that it was negligent or that its acts were the proximate cause of Neely's death.
The case was tried to a jury. At the close of plaintiff's evidence and again at the close of all of the evidence, defendant moved for a directed verdict in its favor, alleging, among other things, that there was no evidence of negligence on its part, that there was no evidence tending to show that anything it did, or failed to do, proximately caused Neely's death, and that there was no evidence that it breached any duty owing to Neely. Both motions were overruled and the case submitted to the jury, which returned a verdict in favor of plaintiff in the sum of $25,000. Thereafter defendant filed a motion for judgment notwithstanding the verdict in accordance with its motions for directed verdict or, in the alternative, for a new trial. The trial court denied the motions and entered judgment on the verdict in favor of plaintiff. The dispositive question presented here is whether the plaintiff's evidence was sufficient to go to the jury on the issue of negligence and proximate cause.
The missile silo in question was being constructed and equipped by several different contractors. It is a cylindrical structure approximately 50 feet in diameter and 130 to 140 feet in depth. For construction purposes, it was divided into four Quadrants as follows: Quadrant I — the southeast one-fourth of the silo; Quadrant II — the northeast one-fourth; Quadrant III — the northwest one-fourth; and Quadrant IV — the southwest one-fourth. A square steel framework, called a "crib" is located inside the silo and it forms the frame within which the launcher rides up and down. Outside of the crib are two counterweights. These counterweights are between the crib and the silo's outer wall. One of them is located in each of Quadrants II and III, or the northeast and northwest portions of the silo. The counterweights are of an odd shape so as to conform with and fit between the straight side of the steel crib and the rounded outer wall of the silo, and slide up and down, as the launcher moves, within a system of fixed rigid rails. The launcher system is an elevator mounted within vertical rails, by which the missile is raised from its underground storage position to its firing position. Its movements are controlled and stabilized by the counterweights which go down as the launcher rises, and vice versa. The scaffolding and platforms required during the course of construction were furnished and built by Eby as a subcontractor on the project. Neely's employer was also a subcontractor, whose contract provided that it would furnish the engineering services and also the work done by the millwrights and other craftsmen who were employed by yet another contractor. Construction on the site was almost completed at the time Neely fell to his death from a platform which had been built near the top of the silo by employees of Eby. There remained to be done only the testing of the launcher system and the installation of the missile itself.
Sometime prior to the testing, Eby's carpenters had constructed a wooden platform between the counterweights which was to be used by those engaged in making the tests. The day silo captain, or millwright foreman, Blanchard, discovered that it was too large and interfered with the measurements that had to be taken from a drive locking mechanism at the bottom of the silo and the counterweight locking mechanism located about 6 feet below the top of the silo. He decided that the platform would have to be modified, and directed Eby's foreman to make the necessary changes so that the measurements could be made without interference from it. The platform was about two feet above the counterweights and after the changes had been made it did not cover the entire space between the counterweights. After the modifications had been made, Blanchard told the millwrights that they could begin making the critical measurements. At about the time the measurements were to be made, Blanchard observed his fellow employee, Neely, who was the night silo captain standing on the platform. He asked Neely how things were going and Neely replied "everything is under control." Blanchard also testified that when he left the area it was well lighted, that he could see the counterweights and the platform as well as the space between them, and that the platform was on the level requested by him in his directions to Eby's foreman. The evidence is clear that the platform, both before and after the modification or reconstruction, was located in the same place. It extended in a north-south direction from the steel crib to the outer wall of the silo, and was supported on the south end by I-beams which were a permanent part of the steel crib. The north end rested on water pipes which were permanently fixed along the outer silo wall. The platform was between the two counterweights so that, facing north from the center of the silo, the one in Quadrant II was east and the one in Quadrant III was west of it. The platform was not more than two feet above the counterweights, on a vertical plane because of the fixed positions of the I-beams and water pipes, and it was one or two feet away from each counterweight, on a horizontal plane. There was a railing on the platform that commenced about 3 feet from the steel crib and ran along the Quadrant II, or east side, and continued along the end next to the outer wall. There was no railing along the Quadrant III, or west side, of the platform.
In addition to Neely, there were three other men engaged in making the measurements. It was Neely's duty to record the measurements when made by the others. To make the measurements, it was necessary that the four men be on top...
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Neely v. Martin Eby Construction Co, 12
...one side, and though it was willing to concede 'that the platform might possibly have had something to do with his (Neely's) fall,' 344 F.2d 482, 486, the court purported to find no evidence, not even circumstantial evidence, that the construction of the platform was the proximate cause of ......
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Pedrick v. Peoria & E. R. Co.
...1062, 87 L.Ed. 1444). The prevailing lack of certainty as to the rule in the Federal courts is apparent when Martin K. Eby Construction Co. v. Neely (10th Cir.), 344 F.2d 482, cert. granted, 382 U.S. 914, 86 S.Ct. 286, 15 L.Ed.2d 230, which applied the Chamberlain rule authorizing a directe......
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Kiner v. Northcutt
...trial court's appraisal of the sufficiency of the evidence in this often perplexing area of appellate review.1 Martin K. Eby Constr. Co. v. Neely, 344 F.2d 482 (10th Cir. 1965), aff'd on other grounds 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967), exemplifies the cases in which the tria......
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Schenfeld v. Norton Company, 9386.
...may be established by reasonable inferences drawn from the facts and circumstances surrounding the accident. See Martin K. Eby Construction Co. v. Neely, 10 Cir., 344 F.2d 482; McCready v. United Iron and Steel Co., 10 Cir., 272 F.2d 700; and Remley v. Newton, 147 Colo. 401, 364 P.2d 581. N......