McCREE, Circuit Judge.
Jesse R. Olds appeals from a judgment entered on a directed verdict for defendant Pennsalt Chemicals Corporation in a personal injury action. Olds' employer, Pip Johnson Construction Company, had contracted with Pennsalt to construct a new building on premises owned by Pennsalt, and Olds sustained serious injuries when he fell into an unguarded catch basin and was scalded by steam which was being vented into the hole from two portable heaters which were used to raise the temperature of the floor to permit the installation of polyethylene topping. Olds received workmen's compensation benefits and was thus precluded from suing his employer by Ky.Rev.Stat. § 342.015. He instituted this action against Pennsalt as a third-party tortfeasor under Ky. Rev.Stat. § 342.055. Federal jurisdiction is based on diversity of citizenship.
Appellant claims that the District Judge erred in directing the verdict, and argues on several grounds that the case should have gone to the jury. We agree with the conclusions of the District Court, and accordingly affirm its judgment.
Appellant argues first that Pennsalt breached a non-delegable duty to maintain safe working conditions. A Kentucky statute imposes the following duties:
Every employer shall:
Ky.Rev.Stat. § 338.030(1) (emphasis added). It is clear that, under Kentucky decisions, Pennsalt was not Olds' employer. McCoy v. Griffith, 196 Ky. 406, 244 S.W. 871 (1922). Johnson's relationship to Pennsalt was that of an independent contractor, and the rule in Kentucky is that a party is not liable for injuries to employees of its independent contractors, without a showing of negligence of the principal. Grogan v. United
Nor is Pennsalt liable as owner of the premises on which the accident took place. Under Kentucky law, a landowner is not liable for injuries to an employee of an independent contractor, unless the work done or the materials used constitute a nuisance or are inherently dangerous, Simmons v. Clark Constr. Co., supra; Jennings v. Vincent's Adm'x, 284 Ky. 614, 145 S.W.2d 537 (1940), and instrumentalities such as gasoline and scaffoldings have been held not to be within these categories. Jennings v. Vincent's Adm'x, supra; Grogan v. United States, supra. By analogy, we believe that a Kentucky court would not find the use of steam under the circumstances here inherently dangerous.
Appellant also contends that Pennsalt should be held liable under Kentucky law if it agreed, in its contract with appellant's employer, to assume responsibility for safety on the job. Cumberland Coal Co. v. Lee, 119 S.W. 746 (Ky.1909). Appellant argues that several clauses in the Pennsalt-Johnson contract created this duty, and points out that Pennsalt retained a construction engineer to remain on the project at all times to approve the contractor's work. The clauses in the contract upon which appellant places his principal reliance recite:
The first of these clauses required Johnson to hire only competent men with good safety records, and gave Pennsalt's construction engineer power to determine what a good safety record was. Clearly it shows concern about safety, but it falls far short of imposing on Pennsalt the duty to supervise the project and the right of control. The second clause gives the right of final approval of all work to Pennsalt's representative, but his function is limited to inspection after work is completed and does not involve actual supervision of the construction work. It indicates that Pennsalt's primary concern was that the finished building conform to specifications, and that the construction engineer was not responsible for supervising the details of the day-to-day construction work. Cf. Baker v. Pidgeon Thomas Co., 422 F.2d 744, 746 (6th Cir. 1970).
Another clause of the contract expressly vests in Johnson the responsibility for maintaining safety standards on the job:
There is no provision in the contract giving Pennsalt or its representative the right to supervise Johnson's compliance with this responsibility. Appellant argues that Pennsalt's right to cancel the contract at any time without cause gave it such power that it could have, and should be held to have a duty to, force Johnson to comply with safety standards. Perhaps this clause gave Pennsalt significant leverage, but we interpret it as a provision in the nature of
Finally, appellant challenges one of the District Court's evidentiary rulings. Sam Myers, Johnson's safety engineer, testified at the trial for defendant. During cross-examination, appellant introduced a written statement which Myers had made and had (some months later) signed. The District Judge admitted the contents of this statement into evidence, but instructed the jury to consider it only for impeachment purposes. This ruling, of course, precluded the judge from considering the statement's contents in deciding the motion for a directed verdict.
Under Rule 43(a), Fed.R.Civ.P., the rule most favorable to the reception of evidence, federal or state, must be followed in diversity cases. The recent case of Jett v. Commonwealth, 436 S.W.2d 788 (Ky.1969), requires admission of contradictory evidence for substantive purposes as well as for impeachment. The question before us, then, is whether Myers' statement, if so considered, would have required a denial of appellee's motion for a directed verdict.
Myers' pretrial statement was as follows:
Apparently appellant claims that Myers' statement indicates that Pennsalt had assumed responsibility for maintaining safe working conditions, whether or not the contract imposed such a duty. He argues that this testimony presents an issue for the jury, since Pennsalt disclaimed the assumption of this responsibility. In our view, however, the statement shows only that Pennsalt's men made suggestions as any observant person at the job site might. And even if it did indicate the assumption of a duty, no Kentucky authority is cited, nor does our research disclose any, holding that a party may be held to a duty by the conduct which Myers' statement described. Accordingly, even if the District Judge had considered this evidence in deciding the motion for a directed verdict, he would not have arrived at a different result.
Finally, it is irrelevant whether there is any difference between the federal and state standards for the directing of a verdict, because the facts presented here, under any standard, would not support a verdict for appellant under the applicable rules of law.
In directing the verdict for Pennsalt, the District Judge told the jury:
We hold that the District Judge did not err, and the judgment of the District Court is affirmed.