Rogers v. Peabody Coal Company, 15855.
| Decision Date | 17 March 1965 |
| Docket Number | No. 15855.,15855. |
| Citation | 342 F.2d 749 |
| Parties | Eleanora B. Cobb ROGERS, Plaintiff-Appellant, v. PEABODY COAL COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Grover C. Cox, Central City, Ky., and John W. Beard, Owensboro, Ky., for appellant.
Morton J. Holbrook, Owensboro, Ky., Sandidge, Holbrook, Craig & Hager, Owensboro, Ky., on brief, for appellee.
Before EDWARDS, Circuit Judge, McALLISTER, Senior Circuit Judge and WEINMAN, District Judge.
This appeal arises out of a summary judgment rendered by the District Court against plaintiff, Eleanora B. Cobb Rogers, Administratrix of the Estate of her late husband, Jim Beckham Cobb. The amended complaint set up an action for wrongful death rising out of the alleged negligence of defendant, Peabody Coal Company (hereinafter sometimes referred to as Peabody). Plaintiff alleges, in substance, that her decedent was employed as a welder by West Kentucky Steel Construction Company (hereinafter referred to as West Kentucky) and that defendant, Peabody, entered into an oral agreement with West Kentucky whereby West Kentucky and Peabody were to construct a ten inch pipeline across approximately two miles of Peabody's property for the purpose of supplying water for the washing of coal. The pipeline was not to be buried, but was to rest on crossties on the surface of the ground. Under the agreement, West Kentucky was to furnish the labor and the equipment. Peabody was to furnish all the pipe, welding rods and all the railroad crossties on which the pipeline was to be placed. Defendant was also to select and prepare the right-of-way over which the pipeline was to be laid by West Kentucky and all the work done in compliance with the contract was to be under the supervision and control of defendant.
Plaintiff also alleges that the construction of the pipeline was the joint undertaking of defendant, Peabody, and West Kentucky, though the latter company was not made a party to this action.
On the day plaintiff's intestate was injured, he was working on the pipeline doing "back-up" welding, i. e., placing the second and third (final) welds on the pipe joints. He was underneath the pipeline which was suspended in the air on crossties when two joints of pipe, weighing a total of approximately two thousand pounds, fell upon him. He lay in that condition for approximately one and one-half hours before he was discovered by Walter Woolsey, one of the partners of West Kentucky. He died two days later as a result of the injuries received in this accident.
Plaintiff has alleged a number of specifications of negligence on behalf of defendant, including to wit: failure to provide safe working conditions, creating a dangerous condition because of the manner in which the work was required to be completed; failure to select a route for the right-of-way which would be safe; failure to provide the proper type of supports upon which the pipe was to be laid; and failure to provide the necessary safety measures, which included the presence of one of defendant's safety officers at all times when any work was being performed on the pipeline.
The question before this Court is whether the District Court committed error by granting defendant's motion for summary judgment. Rule 56(c) provides:
"* * * the summary judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,...
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