Wray M. Scott Company v. Daigle, No. 17051.
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
| Writing for the Court | JOHNSEN, , and MATTHES and RIDGE, Circuit |
| Citation | 309 F.2d 105 |
| Parties | WRAY M. SCOTT COMPANY, Inc., a Corporation, Appellant, v. Carolyn DAIGLE, Administratrix of the Estate of Zenie Daigle, Deceased, and Peter Kiewit Sons Company, a Corporation, Appellees. |
| Docket Number | No. 17051. |
| Decision Date | 29 October 1962 |
309 F.2d 105 (1962)
WRAY M. SCOTT COMPANY, Inc., a Corporation, Appellant,
v.
Carolyn DAIGLE, Administratrix of the Estate of Zenie Daigle, Deceased, and Peter Kiewit Sons Company, a Corporation, Appellees.
No. 17051.
United States Court of Appeals Eighth Circuit.
October 29, 1962.
John R. Barton, Omaha, Neb., for appellant. Raymond M. Crossman, Omaha, Neb., on the brief.
Alfred A. Fiedler, Omaha, Neb., for appellees. Alto V. Watson, Beaumont, Tex., on the brief.
Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.
MATTHES, Circuit Judge.
Zenie Daigle was an employee of Peter Kiewit Sons Company, and on August 4, 1959, while engaged with others in the construction of cement bins in Louisville, Nebraska, fell and sustained injuries which caused his immediate death. At that time Daigle was a citizen of the State of Texas. Daigle's widow, Carolyn, was appointed as administratrix of his estate by the County Court of Jefferson County, Texas. The administratrix instituted this action in the United States District Court for the District of Nebraska against Wray M. Scott Company, Inc., the appellant herein, for the purpose of recovering for the alleged wrongful death of Daigle.1 In brief, the pleaded theory of liability of Scott was that it had furnished to Kiewit a faulty and defective
Plaintiff recovered a verdict against Scott in the amount of $26,228.82. The court entered judgment thereon and further directed that $4,805 thereof be paid to Kiewit's insurer.
Jurisdiction has been established by reason of the amount involved and diversity of citizenship of the parties.
Scott, at the conclusion of the whole case, moved for a directed verdict, and after the verdict and judgment, moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. These motions were denied. Here, Scott's principal point is that the court erred in denying the motions and in submitting the case to the jury. The posture of the case in this court is such that we are required to determine whether the evidence was sufficient to permit the jury to resolve these questions: (1) was the cable in question in a defective and dangerous condition at the time Scott delivered it to Kiewit; could Scott have discovered the defect in the cable by timely and proper inspection before delivering the same to Kiewit and to have warned Kiewit or its employees of the dangerous and unsafe condition of the cable; and (2) was the defective cable the proximate cause of Daigle's death? We observe that there is no issue or controversy concerning the dangerous and unsafe condition of the cable as the result of the defective splice. Indeed, Scott frankly concedes in its brief that "the manner in which the cable had been joined, was improper and defective; that is, someone had merely overlapped the two bare ends of the cable and then wrapped that area of the cable with friction tape."
While not raised by the parties, we are nevertheless confronted with the question whether the state or federal standard or test of the sufficiency of the evidence controls in a diversity case in federal court; a question that has not been resolved by the Supreme Court. Dick v. New York Life Ins. Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935, and cases cited; 5 Moore's Federal Practice (2 Ed. 1951) § 38.10, 1961 Cumulative Supplement, pp. 7 and 8. Since Dick, we have refrained from making determination of the question in at least three cases where the state and federal standards are substantially alike and where the parties assumed that the state test controlled. Ford Motor Co. v. Mondragon, 8 Cir., 271 F.2d 342; Lewis v. Nelson, 8 Cir., 277 F.2d 207; Hanson v. Ford Motor Co., 8 Cir., 278 F.2d 586.
The Supreme Court of Nebraska has enunciated the test applied in that state in numerous cases. That Court's view is typified in the following pronouncements:
Graves v. Bednar, 171 Neb. 499, 503, 107 N.W.2d 12, 15:
"In Owen v. Moore, 166 Neb. 239, 88 N.W.2d 768, we held: `In a case where different minds may reasonably draw different conclusions or inferences from the adduced evidence, or if there is a conflict in the evidence as to whether or not the evidence establishes negligence or contributory negligence, and the degree thereof, when one is compared
with the other, such issues must be submitted to a jury.\'
* * * * * *
"In Griess v. Borchers, 161 Neb. 217, 72 N.W.2d 820, 822, we held: `Negligence is a question of fact and may be proved by circumstantial evidence. All the law requires is that the facts and circumstances proved, together with the inferences that may be legitimately drawn from them, shall indicate, with reasonable certainty, the negligent act complained of. * * *."
Snyder v. Farmers Irr. Dist., 157 Neb. 771, 780-781, 61 N.W.2d 557, 563:
"`Where different minds may draw different inferences or conclusions from the facts proved, or if there is a conflict in the evidence, the matter at issue must be submitted to the jury to be determined; but where the evidence is undisputed, and but one reasonable inference can be drawn from the facts, the question is one of law for the court.\' * * * `It is not the province of this court in reviewing the record in an action at law to...
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Ahmann v. United Air Lines, Inc., No. 17065
...here since we think there exists no substantial difference between the three jurisdictions. See Wray M. Scott Co. v. Daigle, 8 Cir., 1962, 309 F.2d 105. In Tennant v. Peoria & P. U. Ry. Co., 1944, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520, rehearing denied 321 U.S. 802, 64 S.Ct. 610, 88 L.Ed.......
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Mittlieder v. Chicago and Northwestern Railway Co., No. 19314.
...v. Strand, 382 F.2d 224 (8th Cir. 1967), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967); Wray M. Scott Co. v. Daigle, 309 F.2d 105, 109 (8th Cir. Where contributory negligence is pleaded as a defense, but there is no evidence to support that defense, it is prejudicial erro......
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Schultz & Lindsay Construction Company v. Erickson, No. 17957.
...the sufficiency of the evidence. (Coca Cola Bottling Co. v. Hubbard, 203 F.2d 859, 860-861 (8 Cir. 1953); Wray M. Scott Co. v. Daigle, 309 F.2d 105, 108-109 (8 Cir. 1962), setting forth the federal test; Grenz v. Werre, 129 N.W.2d 681, 685-686 (N.D.1964), setting forth the North Dakota test......
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CHICAGO, BURLINGTON & QUINCY RAILROAD CO. v. Beninger, No. 18409.
...upon the basis that Nebraska law controls upon this issue. When confronted with a similar problem in Wray M. Scott Co. v. Daigle, 8 Cir., 309 F.2d 105, we examined the Nebraska cases and determined that the Nebraska standard for determining the sufficiency of evidence to support a verdict i......
-
Ahmann v. United Air Lines, Inc., No. 17065
...here since we think there exists no substantial difference between the three jurisdictions. See Wray M. Scott Co. v. Daigle, 8 Cir., 1962, 309 F.2d 105. In Tennant v. Peoria & P. U. Ry. Co., 1944, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520, rehearing denied 321 U.S. 802, 64 S.Ct. 610, 88 L.Ed.......
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Mittlieder v. Chicago and Northwestern Railway Co., No. 19314.
...v. Strand, 382 F.2d 224 (8th Cir. 1967), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967); Wray M. Scott Co. v. Daigle, 309 F.2d 105, 109 (8th Cir. Where contributory negligence is pleaded as a defense, but there is no evidence to support that defense, it is prejudicial erro......
-
Schultz & Lindsay Construction Company v. Erickson, No. 17957.
...the sufficiency of the evidence. (Coca Cola Bottling Co. v. Hubbard, 203 F.2d 859, 860-861 (8 Cir. 1953); Wray M. Scott Co. v. Daigle, 309 F.2d 105, 108-109 (8 Cir. 1962), setting forth the federal test; Grenz v. Werre, 129 N.W.2d 681, 685-686 (N.D.1964), setting forth the North Dakota test......
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CHICAGO, BURLINGTON & QUINCY RAILROAD CO. v. Beninger, No. 18409.
...upon the basis that Nebraska law controls upon this issue. When confronted with a similar problem in Wray M. Scott Co. v. Daigle, 8 Cir., 309 F.2d 105, we examined the Nebraska cases and determined that the Nebraska standard for determining the sufficiency of evidence to support a verdict i......