McCready v. United Iron and Steel Company

• Decision Date: 07 November 1959
• Docket Number: No. 6129.,6129.
• Citation: 272 F.2d 700
• Parties: Wesley McCREADY, Administrator of the Estate of E. M. Morris, deceased, Appellant, v. UNITED IRON AND STEEL COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

272 F.2d 700 (1959)

Wesley McCREADY, Administrator of the Estate of E. M. Morris, deceased, Appellant, v. UNITED IRON AND STEEL COMPANY, a corporation, Appellee.

No. 6129.

United States Court of Appeals Tenth Circuit.

November 7, 1959.

James E. Grigsby, Oklahoma City, Okl. (Howard C. Triggs, Oklahoma City, Okl., on the brief), for appellant.

Gus Rinehart, Oklahoma City, Okl. (Butler, Rinehart & Morrison, Oklahoma City, Okl., on the brief), for appellee.

Before BRATTON, LEWIS and BREITENSTEIN, Circuit Judges.

BRATTON, Circuit Judge.

This case presents for review asserted error on the part of the trial court in withdrawing the cause from the jury and entering judgment for the defendant. The action was instituted by the administrator of the estate of E. M. Morris, deceased, against United Iron and Steel Company to recover damages for the death of the deceased. Jurisdiction was predicated upon diversity of citizenship with the requisite amount in controversy. Negligence of the defendant in the manufacture of steel casements for windows in a seminary was alleged as the proximate cause of the death of the deceased. It was specifically alleged that the defendant negligently failed to weld a certain cross-bar to one of the casements; that it negligently failed to inspect such cross-bar after it was fitted into place to ascertain the absence of the weld; that it negligently painted the casement to conceal the absence of the weld, when it knew that workmen in plumbing the casements into the walls of a building being constructed would have to use such cross-bars as handholds and supports in fitting and securing the casements in place in the walls of the building; that the deceased was an iron worker; that he was engaged in shortening the outside flanges on the casements by cutting them with a cutting torch; that in ascending and descending the casements he used the steel cross-bars as handholds and footrests; that one of the cross-bars came loose causing him to fall about fourteen feet to the concrete floor which resulted in his death. Negligence was denied and contributory negligence of the deceased was pleaded. When plaintiff rested, defendant moved that the action be dismissed and judgment entered for the defendant. The ground of the motion was the insufficiency of the evidence to warrant a verdict against the defendant. The motion was sustained and judgment entered accordingly.

Appellant contends that the evidence was sufficient to take the case to the jury on the issue of negligence as the proximate cause of the accident resulting in the death of the deceased. It is the general rule that when the evidence relating to negligence is such that fair-minded persons of experience may reasonably draw different conclusions therefrom, the question is one of fact for the jury. Transcontinental Bus System, Inc. v. Taylor, 10 Cir., 265 F.2d 913. But it is the province and duty of the court to direct a verdict where the evidence is without dispute or is conflicting but of such conclusive nature that if a verdict were returned for the plaintiff or defendant, as the case may be, the exercise of sound judicial discretion would require that it be set aside. Commercial Standard Insurance Co. v. Feaster, 10 Cir., 259 F.2d 210.

In a case of this kind, a verdict for plaintiff cannot be predicated upon conjecture or speculation relating to the issue of negligence. Shell Oil Co. v. Haunchild, 203 Okl. 456, 223 P.2d 333. Instead there must be substantial evidence tending to show the acts of negligence pleaded in the complaint; and there must also be evidence tending to show that such negligence proximately caused the damage to the complainant. Eastern Torpedo of Ohio Co. v. Shelts, 121 Okl. 129, 247 P. 974; Pine v. Bowles, 179 Okl. 604, 66 P.2d 1077. Negligence as the proximate cause of damage may be established by permissible inferences, but the inference must be based upon something other than mere conjecture or speculation. Shell Oil Co. v. Haunchild, supra. It does not suffice to introduce evidence tending to show facts which are simply consistent with negligence but suggest with equal force an inference of the nonexistence of negligence. The inference of negligence must be the more probable and more reasonable inference to be drawn from the evidence. Gypsy Oil Co. v. Ginn, 152 Okl. 30, 3 P.2d 714; Chicago, Rock Island & Pacific Railway Co. v. Smith, 160 Okl. 287, 16 P.2d 226; Lawson v. Anderson & Kerr Drilling Co., 184 Okl. 107, 84 P.2d 1104. Evidence which presents a mere choice of probabilities relating to negligence as the proximate cause of damage creates only conjecture or speculation on which a verdict for plaintiff cannot stand. The evidence must bring the theory of plaintiff to the level and dignity of a probable cause. Franklin v. Skelly Oil Co., 10 Cir., 141 F.2d 568, 153 A.L.R. 156.

The admissions contained in the pleadings and the evidence adduced, considered together, tended to establish these facts and circumstances. Walter Nashert Company was the general contractor constructing a building for St. Francis Seminary, located near Oklahoma City, Oklahoma. The building included a chapel. Webster Steel Erection Company was a sub-contractor, performing the steel and iron construction work on the building. The deceased was employed...