Grau v. Kaiser , 44 Ohio App. 214 ( 1932 )

This case is presented to this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered for the plaintiff, Margaret Kaiser.

The third amended petition alleged damages to the plaintiff by reason of the negligence of the defendant in the following terms:

"Plaintiff for her cause of action against the defendant says that on or about November 15, 1929, at 9:10 o'clock A.M., she went into the store-room of Joseph Schwarber at 1045 E. McMillan Street, in the City of Cincinnati, Hamilton County, Ohio, to make a purchase, and that after making her purchase and starting to leave said store-room, and that while in the doorway of said store-room, a large hook used by the defendant herein, namely, George A. Grau, his agents and servants, in hoisting a wooden beam to the top of the building, let go and struck the plaintiff, Margaret Kaiser, hitting her on the chest, sustaining injuries hereinafter set forth.

"Plaintiff further says that at said time, said defendant, George A. Grau, his agents and servants, negligently and carelessly operated the hoist without due protection to said plaintiff."

It is further alleged that the defendant was negligent in failing to comply with the building code of the city of Cincinnati, in which city the injury was received, requiring the providing of "proper ropes, guards or other protection."

The answer was a general denial.

No bill of exceptions has been presented to this court. Among the original papers we find two special interrogatories, answered and signed by the jury. They are as follows:

"1. Did a large hook used by the defendant, or his agents or servants, in hoisting a wooden beam to the top of the building let go and strike the plaintiff?

"No; because it appears (from the testimony) that no ``hook' was used, and that there was no ``hoisting' of any ``wooden beam'; but, rather, that a ladder-jack was used and that it did ``let go' — striking the plaintiff."

"2. Did the defendant, or his agents or servants, negligently and carelessly operate the hoist?

"No; because it appeared (from the testimony) that there was no ``operation' of any ``hoist'; but that the ladder-jack was handled with a degree of carelessness."

It is claimed by plaintiff in error that his motion for judgment in conformity to the findings of fact by the jury should have been granted. This contention raises the question whether the jury rendered its verdict upon assignments of negligence not alleged in the third amended petition, under which the issues were made.

Taking the categorical negatives of the jury, the allegations of negligence in the third amended petition are eliminated as proximate causes of the injuries suffered by the plaintiff. The addenda to the negatives are meaningless in the absence of a bill of exceptions, possibly furnishing definition of a "ladder-jack" or definitions secured from ordinary dictionaries indicating the common use of the term. Reference to the dictionaries in common use shows no term "ladder-jack." We have no idea of its meaning.

Under the provisions of Section 11420-18, General Code (114 Ohio Laws, 211), the motion for judgment should have been granted. The duty to grant the motion under such circumstances is mandatory. Columbus, Delaware Marion Electric Co. v. O'Day,Admx., 123 Ohio St. 638, 176 N.E. 569.

The judgment is reversed, and judgment is entered here for the plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

HAMILTON and CUSHING, JJ., concur.