Conrad v. Ridgeville Twp. Bd. Ed. ( 1928 )

The parties stand in this court in the same relative positions that they did in the court of common pleas, and in this opinion will be referred to as plaintiff and defendant, as they were in that court.

The plaintiff, Frederick H. Conrad, a minor, was a pupil in the Ridgeville high school of defendant board, and as such was taking a manual training course in the mechanical department, and in connection with his course was using what is commonly known as a buzz saw. The machine upon which he was working consisted of a table, with shafting underneath, to which the saw was attached, the saw projecting through the table a distance of approximately two inches and being operated by means of an electric motor attached to the shafting upon which the saw was mounted.

On the day of the accident the plaintiff was engaged in cutting certain pieces of wood, when suddenly, and without notice of impending danger, the index finger and thumb of his left hand came in contact with the saw, and he received serious and permanent injuries. The plaintiff alleged that at the time of the accident he was without fault, and that the accident was due wholly and solely to and was the direct and proximate result of the defendant's negligence, in the following particulars, to wit:

"First. Said defendant was guilty of negligence and carelessness in having and maintaining and permitting to be operated said buzz saw without guard as aforesaid, well knowing that said saw was exposed, and that the same projected beyond and upward from the surface of said table, and that should any portion of the body of this plaintiff come in contact with same, while he was at work upon said machine in the performance of his regular duties, that the same would result in serious and permanent injuries to this plaintiff.

"Second. Said defendant school board was guilty of negligence and carelessness by and through its agents and servants in wholly failing to guard said saw, when they either knew, or in the exercise of reasonable care must have known, that said saw projected upward from the surface of said table approximately two inches, and that said saw, when in operation, revolved at a high and dangerous rate of speed, and that should the person of this plaintiff be caught upon said saw he would be seriously and permanently injured thereby.

"Third. Said defendant school board was guilty of negligence and carelessness by and through its agents and servants in failing to make a sufficient and proper inspection of said saw in order to discover that said saw, which revolved very rapidly when in motion, projected upward from the surface of said table a distance of approximately two inches, without being guarded, and had so projected without being guarded for a long period of time prior to said January 24, 1928, well knowing that should the person of this plaintiff come in contact with said revolving buzz saw that he would be seriously and permanently injured thereby."

To this petition a general demurrer was filed by the defendant, which was sustained by the trial court; and the plaintiff not desiring to plead further, final judgment was entered in favor of the defendant.

Plaintiff's counsel concedes that at the common law plaintiff would not be entitled to recover damages from the defendant under the circumstances named, but claims that under the statutes of this state a liability is created which establishes a cause of action against the defendant if plaintiff is able to establish the facts alleged in his petition.

In title 2 of the Ohio State Building Code, being Sections 12600-44 to 12600-72, both inclusive, General Code, provision is made for the construction and equipment of school buildings, and Section 12600-72 reads as follows:

"For the necessary devices for guarding machinery and pits, see Sections 1027 and 1028, Ohio General Code."

By Section 1027, General Code, the owners and operators of shops and factories are required to make suitable provisions to prevent injury to persons who use or come in contact with machinery or any part thereof in said shops and factories, and are specifically required to "guard all saws, wood-cutting, wood-shaping and all other dangerous machinery" therein; and Section 1028 reads in part as follows:

"Whoever, being a person, firm or corporation, fails to comply with any provision of the preceding section, or fails to comply with such orders for changes as are issued by the chief inspector, within thirty days thereafter shall be fined not less than one hundred dollars * * * for each offense."

It is admitted, of course, by the demurrer, that the plaintiff suffered the injuries at the time and place alleged by him, and that the saw was not guarded, as required by the foregoing quoted sections. The plaintiff claims that by these sections a civil liability is cast upon all employers and school boards, who fail to do the things required as set forth therein.

It being conceded that the defendant school board would not be liable in damages for the injuries complained of unless a liability is created by statute, do said Sections 1027 and 1028 create a civil liability?

The Supreme Court, in the case of Franklin County Commissioners v. Darst, 96 Ohio St. 163, 117 N.E. 166, held that Section 7563, General Code, imposes an absolute duty upon the board of county commissioners to erect guard rails on each side of every embankment or approach to county bridges at such points where the embankment or approach is more than a certain height, and that for failure to comply with the requirements of said section the county was liable for damages — not under that section, but under a subsequent section, to wit, 7565, which expressly provides that the county shall be liable for all accidents or damages where the county commissioners fail to comply with said Section 7563. In the opinion by Judge Jones it is said, at page 167 (117 N.E. 167):

"In the interpretation of a statute seeking to impose a liability against the board, where it is sought to abrogate or modify the common-law rule, the statutory terms must clearly import such intention, and, if doubtful or ambiguous, should be resolved against its imposition."

In the instant case it is beyond question that the board of education was required, by the sections hereinbefore quoted, to guard the saw which injured the plaintiff, and its failure to do so made the members thereof guilty of a misdemeanor, for which they could be punished in an action at law; but these sections do not impose a civil liability upon said board for failure to do so. At most, it is not clear that the lawmaking body intended it to be so; accordingly, one who is injured by such failure cannot recover damages from the board. See Finch v. Bd. of Education,30 Ohio St. 37, 27 Am. Rep., 414; Bd. of Education v. Volk, 72 Ohio St. 469, 74 N.E. 646.

We are therefore of the opinion that the ruling of the trial court was correct, and the judgment is affirmed.

Judgment affirmed.

WASHBURN, P.J., concurs.

FUNK, J., not participating.