Pursuant to new Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and havе directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir. 1969,
Owen Lirette and George Spencer worked for South Louisiana Drilling Co. as roustabouts. On the day of the accident, June 29,1964, they were aboard one of the Company’s drilling barges in Lake Barre reworking a well belonging to defendant, Texaco, Inc. Texaco had contracted with the co-defendant McCullough Tool Co. for McCullough to “back-off” the tubing, that is, to extricate easing that was stuck in the well. McCullough furnished a crew and certain еquipment necessary to detonate a “string shot”, an explosive charge dropped on a line into the well to sever the pipe. Lirеtte and Spencer suffered injuries when they removed “slips” that held the casing in place laterally: pent-up torque within the hole caused thе pipe to spin around suddenly, and protruding valves struck the heads of the men, who were bending over to reach the slips.
In this diversity action Spencer and Lirette alleged that Texaco and McCullough, through their agents, negligently set the pipe so that the protruding valves were at an unsafе height from the floor. Safety, they said, required that the valves be set five or six feet above the floor so as to spin around above the heаds of men leaning over to release the stays. The companies answered that the rig had been set up safely and according to custom. They also claimed that the men had released the slips on their own initiative, and against the warnings of a fellow employee. Thus, said the cоmpanies, any injuries resulted from contributory negligence on the part of the plaintiffs.
Texaco and McCullough also filed a third-party complaint against South Louisiana Drilling Co., which employed Lirette and Spencer. The complaint alleged that the drilling company had undertaken tо indemnify the third-party plaintiffs for any recovery against them caused by its failure to fulfill its contractual obligations; the complaint alleged that if any negligence on the employers’ part had occurred, it was attributable to Goldman, South Louisiana’s foreman.
A sixth party, Employers Mutual Liability Co. of Wisconsin intervened in the case as South Louisiana’s liability insurer. The insurer alleged that it had made certain payments to Lirette and Spenсer for medical expenses and, as subrogee,, sought recovery over against Texaco and McCullough for the amounts paid out.
The jury fоund in favor of both employees as against Texaco and McCullough. It awarded $8,500 to Lirette, of which $6,576.51 was owed to the inter-venor, Employers Mutual. It awarded $22,200 to Spencer, of which $6,750.43 was owed to Employers Mutual.
The district judge, on facts stipulated by the parties, further held that Texaco and McCullough were not entitled to in *1066 demnity from the third-party defendant, South Louisiana. The court ordered interest on the awards to the employeеs to run from the date of the entry of judgment, rather than from the time that the complaint was filed.
Texaco and McCullough appeal first “from the verdict of the jury” because of insufficient supporting evidence. That of course is not a proper specification of error.
Legal
errors are committed by courts in acting upon motions and in ordering the entry of judgment, not by juries. The record discloses no motion for a directed verdiсt or for a judgment notwithstanding the verdict. In any event, the record would not justify a directed verdict or a judgment n. o. v. This Court recently set the standard to be аpplied to ruling on such motions: “[I]f there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasоnable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted tо the jury.” Boeing Co. v. Shipman, 5 Cir. 1969,
The fact that experts testified that custom and practice in the industry favor allowing the valves protruding from the pipе to be elevated no more than two or three feet from the floor does not foreclose the issue. Custom does not always determinе the standard of reasonable conduct. The T. J. Hooper, 2 Cir. 1932,
The issue of contributory negligеnce does not require lengthy analysis. Cochran, the Texaco supervisor, testified that he could not recall ordering Spencer and Lirette to pull the slips. They testified that he did. Spencer further testified that Cochran told him that there was no danger. Another employee, the onе who alleged that he had warned Spencer and Lirette about the torque, also pulled a slip at the same time, but managed to lean оut of the path of the revolving pipe. It is possible that in spite of the instructions of Cochran and the compliance of their fellow emрloyee, Lirette and Spencer still should have known that it was foolish to pull the slips in the way that they did. Reasonable men could differ on that pоint, however, and it was therefore for the jury to decide. Boeing Co. v. Shipman, supra.
The appellants also maintain that the district court erred in failing tо find South Louisiana liable to them as an indemnitor. We find no error, and certainly not the clear error required to reverse the district court’s finding. The indеmnity agreement would have been effective if South Louisiana, not Texaco and McCullough, had been guilty of negligence, but the facts, as the сourt found, were otherwise.
Similarly without merit is the argument that the awards to Spencer and Lirette were unreasonably large and subject to revеrsal on appeal. Texaco professes to find the awards, particularly those portions for pain and suffering, “staggering”. Doctors, however, testified at the trial as to the depth of the cuts and the length of the scars caused by the accident. On the basis of that evidence we affirm the court’s acceptance of the amounts awarded by the jury.
The filial issue presented here is whether the court erred in awarding interest from the time judgment was entered, rather than from the time the
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complaint was filed. In diversity cases, state law governs the award of interest. New Amsterdam Casualty Co. v. Soileau, 5 Cir. 1948,
The judgment appealed from is amended to allow legal interest from the time of judicial demand, and, as amended, it is affirmed.