Nitzel v. AUSTIN COMPANY, 5598.

• Decision Date: 05 November 1957
• Docket Number: No. 5598.,5598.
• Citation: 249 F.2d 710
• Parties: Raymond NITZEL and United States Fidelity and Guaranty Company, Appellants, v. The AUSTIN COMPANY, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

249 F.2d 710 (1957)

Raymond NITZEL and United States Fidelity and Guaranty Company, Appellants, v. The AUSTIN COMPANY, Appellee.

No. 5598.

United States Court of Appeals Tenth Circuit.

November 5, 1957.

Raymond A. Wagner, Denver, Colo. (Wagner & Wyers, Denver, Colo., were with him on the brief), for appellants.

Margaret R. Bates, Denver, Colo. (Yegge, Bates, Hall & Shulenberg, Denver, Colo., were with her on the brief), for appellee.

Before MURRAH, PICKETT and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

Appeal is taken from a judgment of no cause of action entered upon the verdict of a jury in an action by plaintiffs against defendant for damages occasioned by personal injuries allegedly suffered by plaintiff Nitzel as a result of defendant's negligence. The parties will be referred to as they appeared in the District Court for the District of Colorado. The United States Fidelity and Guaranty Company, compensation insurer of plaintiff Nitzel's employer, has paid to the individual plaintiff in excess of $10,000 in workmen's compensation benefits and is joined as party plaintiff solely because of such fact. There is no issue peculiar to the corporate plaintiff.

At the time plaintiff sustained the injuries of which he complains he was engaged in the course of his empolyment as an employee of William Colin Kirk, subcontractor engaged in the installation of elevators on a project for the Atomic Energy Commission known as the Rocky Flats Project near Denver, Colorado. The defendant corporation, The Austin Company, was the prime contractor for the project. The trial court submitted the case to the jury upon instructions allowing consideration of the commonlaw defense of contributory negligence. Plaintiff contends that such defense has been abrogated by Colo.Rev.Stat.1953, sec. 80-6-5, in all cases where a servant is injured in the performance of his duty for his employer and regardless of whether or not an employee-employer relationship exists between the injured workman and the tort-feasor. The contention has no merit.

Plaintiff was not an employee of the defendant in this case and a most casual reading of the Colorado statute¹ shows its inapplicability to causes of action not involving claims by an employee against his employer. Article 6, of which Sec. 5 is a part, is entitled "Employer's Liability"² and the cited section, by its terms, is premised upon the negligence of the employer. Plaintiff's contention to the contrary finds no support in case or reason and persuasive authority exists to the contrary. Colorado Milling & Eelevator Co. v. Bright, 76 Colo. 338, 231 P. 1111; Ferguson v. Ringsby Truck Lines, 10 Cir., 174 F.2d 744.

Plaintiff next argues that there is no evidence warranting submission to thhe jury of the issue of contributory negligence.³ A review of the evidence which the jury may have determined to be both credible and crucial negatives error in this regard when considered, as the appellate rule requires, from the standpoint most favorable to the verdict. Washington Ry. & Electric Co. v. Chapman, 62 App.D.C. 140, 65 F.2d 486; United States v. Newcomer, 8 Cir., 78 F.2d 50; Grand Trunk Western R. Co. v. Collins, 6 Cir., 65 F.2d 875. Nitzel was injured (or so the jury could have found) when he fell three floors down an elevator shaft while attempting to adjust or repair an electric hoist in the shaft for the benefit of his employer, Kirk. To reach the hoist, Nitzel leaned into the shaft applying the pressure of his weight upon a steel bar which had been earlier installed by defendant at waist level across the entrance to the shaft. After a moment or two the steel bar loosened at one end, swung free and Nitzel fell into and down the shaft. The steel bar was a temporary installation intended as a warning device of the existence of an otherwise unprotected elevator shaft and as a barricade tending to lessen the chance of a workman walking or backing into the shaft. Since plaintiff was an experienced workman in the installation of elevators and had prior warning of the limited purpose of the bar it was for the jury to determine whether or not he exercised due caution for his own safety in relying upon the security of the bar to support him while leaning into the shaft.

Appellant further asserts that the trial court erred in refusing proffered instructions relative to the application of the doctrine of res ipsa loquitur. Again, we find no error. The trial court in its instructions did not clothe plaintiff with the burden of proving specific acts of negligence upon defendant's part in the installation of the steel bar. The court required plaintiff to show only "that the bar was inadequate to withstand the uses reasonably expected to be made of it." The essential jury question was whether or not plaintiff had made a reasonable use of the bar under all the circumstances of the case. The doctrine of res ipsa loquitur is not applicable to such an issue.

Arguing that the evidence offered in the case raised no issue pertinent to the subject matter of certain cautionary instructions given by the trial court appellant includes the giving of such instructions in his assignments of error. The charge of the court included such statements as "the defendant is not an insurer of the safety of the plaintiff" and the "jury should not resort to guess, conjecture or speculation". These instructions and others complained of by appellant are not unusual, do not introduce matter foreign to the case, and are without prejudice to appellant....