MARCHELLO v. DENVER & R. G. WESTERN R. CO.

No. 76-2052.

576 F.2d 262 (1978)

Janice MARCHELLO, for herself and as Administrator of the Estate of Keith Marchello, Deceased, Plaintiff-Appellant, v. The DENVER & RIO GRANDE WESTERN RAILROAD COMPANY, Defendant-Appellee.

United States Court of Appeals, Tenth Circuit.

Decided April 14, 1978.

Rehearing Denied May 3, 1978.


Attorney(s) appearing for the Case

Jackson B. Howard, of Howard, Lewis & Petersen, Provo, Utah (Robert C. Fillerup, of Howard, Lewis & Petersen, Provo, Utah, on the brief), for plaintiff-appellant.

Kenneth W. Yeates, of Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah (Gerald R. Miller, of Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, on the brief), for defendant-appellee.

Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.


WILLIAM E. DOYLE, Circuit Judge.

The question in this wrongful death action in which the plaintiff's decedent was killed while working for his employer is whether the record discloses issues of fact which require that the case be tried or, if not, whether the plaintiff-appellant is entitled to recover as a matter of law.

We conclude that under the circumstances, it was error to grant the Railroad Company's motion for summary judgment. The cause should have...

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