Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and GRANT, District Judge.
Farmers State Bank of Valparaiso, as Administrator of the Estate of Robert Bearup, deceased, brought this diversity action in the District Court against Dravo Corporation seeking to recover damages for the alleged wrongful death of decedent, Robert Bearup. Bearup, an ironworker in the employ of the U.S. Steel Corporation, was killed when he fell from a height of about ninety feet while at work in connection with the erection of the structural steelwork for a sinter plant*fn1 under construction at U.S. Steel's Gary, Indiana, steel works. There was neither staging beneath the level from which he fell nor guard rails around the opening through which he fell. The defendant, Dravo Corporation, was the contractor for the construction and completion of the plant except that U.S. Steel through its American Bridge Division was erecting the steelwork.
The plaintiff asserts liability on the basis that Dravo by its contract with U.S. Steel undertook responsibility for the safety and protection of all persons on the premises and was under a duty to Bearup to see to it that staging and other appropriate safety devices were employed in compliance with the Indiana Dangerous Occupations Act (5 Burns, Ind.Stat.Ann., Part 2, Title 20, Sec. 301-307) in the efection of the structural steelwork by U.S. Steel, and that Dravo's contractual undertaking to furnish the design drawings for the structure placed it under a duty to Bearup to include provisions for staging in such drawings. Plaintiff asserts that Bearup's death was the proximate result of Dravo's negligent failure to perform one or both of such duties.
The cause was tried to a jury which returned a verdict for the plaintiff awarding damages in the sum of $50,000. The defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial. Defendant's motion for judgment n.o.v. was granted; its motion for a new trial was denied. Plaintiff appealed and the defendant has crossappealed from the order denying its motion for a new trial.
It is well settled that in reviewing the ruling of a trial court on a motion for judgment notwithstanding the verdict, the standards required by that motion are the same as those raised by a motion for a directed verdict. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S. Ct. 189, 85 L. Ed. 147. It must be determined whether the evidence justifies submission of the case to the jury. Lambie v. Tibbits, 7 Cir., 267 F.2d 902, 903. Such a motion should be denied where the evidence, along with all inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions. Valdes v. Karoll's, Inc., 7 Cir., 277 F.2d 637; Pinkowski v. Sherman Hotel, 7 Cir., 313 F.2d 190, 192. But in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any evidence upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed. Gunning v. Cooley, 281 U.S. 90, 50 S. Ct. 231, 74 L. Ed. 720; Hubert v. May, 7 Cir., 292 F.2d 239.
The primary question to be determined on this appeal is whether under the facts before us, as shown by the record, there was any evidence of liability which warranted submission of the case to the jury for its determination. Woods v. Geifman Food Stores, Inc., 7 Cir., 311 F.2d 711.
Plaintiff predicates liability of the defendant upon the contention that the contract between Dravo and U.S. Steel required Dravo to see to it that staging and other appropriate safety devices necessary to comply with the requirements of the Indiana Dangerous Occupations Act were employed by U.S. Steel in the erection of the structural steel, and that such contract required Dravo to furnish drawings for the use of U.S. Steel providing for the use of such staging and safety devices. If this basic issue as to the duties imposed under the contract is resolved in the negative we need consider no other issue to sustain the judgment order of the District Court. The existence of such contractual duties and their negligent breach is asserted as the keystone of plaintiff's case. We therefore turn to consideration of what the contract provides.
The contract, considered as a whole, is not ambiguous. The contract and its specifications, which are made a part thereof, contemplate that Dravo and U.S. Steel would each perform certain of the work so as to construct a complete sinter plant. Although Dravo under the terms of the contract, is charged generally with the construction and completion of the plant, U.S. Steel reserves to itself the furnishing, fabrication and erection of "all structural steelwork" to be done "in accordance with the Contractor's [Dravo's] design drawings". Under the contract heading, "Description of Work" it is provided:
"1. Contractor [Dravo] shall furnish and pay for all labor, materials, supplies, services, tools, equipment, utilities, transportation facilities and plant, not furnished by Owner [U.S. Steel] and do and perform all things necessary for the construction and completion of:
Sinter Plant at Owner's Gary
Steel Works, Gary, Indiana
which said work is fully described in Owner's Specification No. SG-401-A, attached hereto and made a part of this ...