Republic Iron & Steel Co. v. Yanuszka , 166 F. 684 ( 1909 )

EURTON, Circuit Judge

(after stating the facts as above). The first assignment of error relates to the indefiniteness of the third ground of negligence averred in the petition, namely, that the defendant had not provided “plaintiff a safe place in which to work.” A motion to make this averment more definite and specific was overruled. This error, if one at all, became wholly immaterial, for the plaintiff in the progress of the trial relied entirely upon the second ground of negligence stated, namely, that defendant failed “to properly box, cover, and shield said cog wheels.” Neither did the court submit to the jury any other question of negligence.

The defendant had already joined issue upon the petition, and the jury had been impaneled. The counsel for the plaintiff had made an opening statement, when the counsel for the defendant interposed the general objection to the admission of any' evidence whatever, giving as a reason that “the petition does not state any cause of action.” This objection is not waived by the answer, and may be made at any time before final judgment in the case. Rev. St. Ohio 1908, § 5063; Youngstown v. Moore, 30 Ohio St. 133. The defect now.pointed out is that the petition does not state that the plaintiff was ignorant of the defective appliance to which he attributes his injury; in other words, that an assumption of risk is not negatived. But this objection. assuming that assumption of risk should be negatived, is applicable only to the averments of common-law negligence, and is not necessary to the averment of negligence under the statutory obligation to protect the machinery and appliances with which or about which employes are engaged. By section 4238ol, Rev. St. Ohio 1908, it is provided that continuance in employment—

“with knowledge of such omissions shall not operate as a defense, and in such actions, if the jury find for the plaintiff, it may award such damages not exceeding, for injuries resulting in death, (lie sum of $0,000.00, and for injuries not so resulting the sum of $3,000.00, as it may find proiwrtumal to the pecuniary damages resulting from said injuries.”

This case resolved itself into the question as to whether the defendant had complied with the requirements of section 4364-89c, Rev. St. Ohio 1908, both because the plaintiff made no showing of evidence to support the first and third grounds of negligence, which were acts of negligence at common law, and because the court submitted to the jury only the question of negligence stated as the second issue, which was obviously a statement of negligence in respect of the statutory duty to guard and protect employés from exposed machinery and appliances. If, therefore, a cause of action was stated under the statute, the general objection to any evidence was too broad and was properly overruled. The case, therefore, turns upon the question as to whether negligence in respect to a duty imposed by statute was sufficiently stated. Section 4364 — 89c, Rev. St. Ohio 1908, requires all owners of shops, or places, where machinery of any kind is used or operated, to take “ordinary care and make such suitable provisions as to prevent injury to persons who may come in contact with any such machinery or any part thereof.” The act then proceeds to define what shall be suitable provision or ordinary care in specified cases. So much of the act as is here involved is in these words:

“And such ordinary care and such suitable provisions shall Include the casing or boxing of all shafting when operating horizontally near floors, or when in perpendicular or other position operating between, from or through floors, or traversing near floors, or when operating near passageway, or directly over heads of employes; the enclosure of all exposed cog wheels, fly wheels, band wheels, all main belts transmuting power from engine to dynamo, or other kind of machinery, and all openings through floors, through, or in which such wheels or belts may operate, with substantial railings.”

The averment of the petition, after stating that the defendant was engaged in the manufacture of iron and steel, and was operating a mill located at Youngstown, in the state of Ohio, and that the plaintiff, while in its service as a “shearsman” and engaged in his duty as such “shearsman,” had his right hand and arm caught “between exposed and unprotected cog wheels, which were within two feet of where plaintiff was required to work.” It is then averred that his injury was — -

“directly and proximately produced by the gross negligence and unlawful acts of the defendant company in this, to wit:

“First. In directing plaintiff to work so near to said exposed cog wheels.

“Second. In failing to properly box, cover and shield said cog .wheels.

“Third. In not providing plaintiff a safe place in which to work.”

It is then averred that the plaintiff was without fault and did not contribute to his own injury, and that he had sustained damage to the extent of $20,000. This act should be read and construed in connection with section 4238ol, which cuts off the defense of assumption of risk when an employé has been injured by neglect to protect machinery as provided by section 4364-89c, except for the purpose of reducing the damages otherwise recoverable. The fundamental purpose of both acts is remedial and humanitarian, and this beneficent object should not be defeated by narrowness of construction. The case stated by the petition is, in substance, that he had been injured by coming in contact with exposed and unprotected cog wheels, and that the legal duty of the defendant company was to protect or shield such cog wheels by boxing, covering, or shielding.

If the defendant had neither boxed, covered, nor shielded such exposed cog wheels, it had failed to inclose them by a “substantial railing,” and evidence so showing was competent. The objection was, therefore, too broad, for a cause of action is stated with sufficient certainty as to leave no doubt as to the negligent act relied upon.

The second and third requests for charges were denied, and this has been.assigned as error. They were as follows:

“(2) There was no duty resting upon the defendant in this ease to box or cover the cog wheels in question, and there can be no recovery by reason of its not so doing.

“(3) If you find that plaintiff sustained his injury solely by reason of the unboxed or uncovered condition of the cog wheels in question, or by reason of such condition and his own neglect or lack of proper care, then your verdict must be for the defendant.”

The learned trial court construed the petition as averring negligence in respect to a failure to properly inclose unprotected cog wheels by a substantial'railing. Thus he, among other things, said to the jury, as to the issues upon which the case should turn:

■ “The plaintiff in this case says that at the time he was hurt these cog wheels in which his hand and arm were caught were not inclosed with a substantial-railing in the sense in which that expression is used in the statute.”

Again, he said:

“Now, I ask you these questions. They are questions you are to answer in determining what are the rights of the parties in this case. Was this fence or railing the kind that the statute requires? Did this fence operate so as to inclose the exposed cog wheels with -a substantial railing?”

Thus the court properly confined the case to the single question as to the sufficiency and condition of the railing which was relied upon as a compliance with the statute. The special requests in respect to boxing or covering of the cog wheels were not relevant to any issue upon which the case was made to turn, and their denial could have done no harm to the defendant.

The defendants offered in evidence a model of the shearing device and the railing which inclosed it. Upon objection it was excluded because it was only one-fourth the size of the machine represented, the court being of opinion that this difference in size was calculated rather to confuse than to instruct the jury. Much discretion must be allowed a trial judge in respect to evidence of this character. There was no such abuse of discretion in this instance as to require a reversal and new trial.

The court did not submit the interpretation of the statute to the jury. He placed before them the conflicting claims as to the character and sufficiency of the inciosure or railing, explained the purpose and general scope of the act, and left it to the jury to say whether the railing, as they should find it to have been at the time of the accident, did or did not operate to inclose the cog wheels with a “substantial railing.” We do not see how the court could have gone further. The sufficiency of the railing as a protection was a question of fact about which different views might be taken. It was not, upon the disputed facts of this case, error to submit the question to the jury.

Other errors were assigned. They have been examined. The case was plainly one for the jury, under the law as laid down by the court.

The assignments are overruled, and the judgment affirmed.