Baker v. Ohio Ferro-Alloys Corp. , 23 Ohio App. 2d 25 ( 1970 )

I do not wish to express an opinion relating to all issues which might be raised by the "safe place statutes" (R. C. 4101.01et seq.), assumption of risk, or the correctness of interrogatories, but shall try to limit my concurrence to those issues as they relate solely to the facts of this case.

For a more detailed discussion relative to the application of the "safe place statutes" and the decisions of the Supreme Court of Ohio relative thereto, see this writer's concurring opinion in Justice v. Shelby Ice Fuel Co. 18 Ohio App. 2d 197, at 207.

In the instant case, there is no question that Charles O. Baker, the decedent, as an employee of Towne Construction Company, the independent contractor, while working on the premises of Ohio Ferro-Alloys Corporation, was a frequenter within the meaning of that term as used in R. C. 4101.01,4101.11, and 4101.12, for the defendant's premises upon which Towne Construction Company, the independent contractor, and Charles O. Baker, its employee, were doing work remained under the control of and the right of control of the defendant, Ohio Ferro-Alloys Corporation. The crane which struck decedent causing his death was operated by an employee of the defendant, Ohio Ferro-Alloys Corporation, acting within the scope of his employment.

R. C. 4101.11 and 4101.12 place upon the employer the duty to furnish a place which is safe by doing everything reasonably necessary to protect the life, health, safety and welfare of employees or frequenters.

The first interrogatory presented upon request of defendant reads as follows:

"Do you find that the bridge of the crane located in the furnace room building, while it was shut off, locked out and being operated by a Towne Construction Company safety man was a safe place from which to perform the work in erecting the heat shield providing the workman remained thereon?"

The question is misleading and not a finding of ultimate fact in that it relates to a particular place being safe to perform the work absent any finding relative to whether such safe place from which the work could be performed was a reasonably adequate place from which to perform the work to be done, or, as stated by Judge Putman, the argument that the small space atop the crane was a "safe place" had decedent stayed there is an evasion of the existence of the second prong of the statutory duty — which is to "do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees and frequenters."

The reason decedent was on the raw materials side of the building, according to the evidence, was the lack of vice-grip pliers necessary to perform the work from the furnace room side. For this reason Charles O. Baker had accompanied his foreman onto the rail on the raw materials side of the "H beams" where the heat shields were being constructed in order to assist in an operation which was not only quicker and more convenient but necessary without the use of vice-grip pliers.

Defendant sought an answer to the question of adequacy of the place provided as relative to Interrogatory No. 1, supra, by submission of Interrogatory No. 6 as follows:

"With respect to action of the decedent, Charles O. Baker, in going over to the crane rail in the raw materials room, would you find that in performing the work of erecting the heat shields it was

"(a) Necessary;

"(b) Merely quicker and more convenient; or

"(c) Both? . . . . . . . . . .

"ANSWER: (b)."

While I cannot concur in the finding that interrogatories cannot be answered in narrative form but must be such as can be answered only yes or no, I do concur that it is error to ask an interrogatory which limits the answer in the form of multiple choice without leaving an option to the jury. The purpose of interrogatories is to obtain findings on evidentiary matters as distinguished from a special verdict which requires the jury to find separately "upon each determinative issue." There is no provision for a narrative form of verdict. See Miller v.McAllister, 169 Ohio St. 487. I know of no such limitation applicable to a jury's finding of ultimate material facts in answer to interrogatories, and in answering an interrogatory the jury ought not be confined to such a multiple choice answer as selected by the interrogator without being afforded any alternative of making their finding of ultimate fact in such manner as they determine from the evidence to be responsive to the question stated.

For the reason stated, I concur in the finding of Judge Putman that the submission of Interrogatories Nos. 1 and 6 in the form requested constituted error prejudicial to the plaintiff.

On the first trial of this cause, the trial judge refused to give instruction upon the issue of assumption of risk, and a jury verdict was returned in favor of the plaintiff. Upon appeal, members of this court held that refusal to so charge upon assumption of risk was error prejudicial to the defendant. Motion to certify was overruled by the Supreme Court, and, upon retrial, the Common Pleas Court, in compliance with the judgment rendered by this court on the first appeal, instructed on assumption of risk, which is now one of the assigned errors on this appeal from the judgment for defendant rendered on the jury's verdict on retrial.

In my opinion, there are some circumstances in which issues under the "safe place statutes" and of "assumption of risk" can exist in the same action. However, I am in agreement that the issue of the assumption of risk can never be used in a manner so as to decrease or relieve an employer from any duty imposed by the "safe place statutes" (R. C. 4101.01 et seq.). Where a place provided by an employer for a frequenter to perform the work undertaken is in compliance with the "safe place" statutes, being both reasonably safe and reasonably adequate to provide all that is reasonably necessary to protect the life, health and safety of employees and frequenters, I can comprehend possible circumstances where a frequenter, by undertaking performance of a task which in and of itself is inherently dangerous or by venturing into other parts of the plant, would assume risks, but not such risk as, limited to the facts of this case, arises from subsequent acts of the employer in control.

As stated in my dissenting opinion on the first appeal, the crane on the raw materials side was being operated by an employee of Ohio Ferro-Alloys Corporation, owner of the premises. At the time the decedent and his foreman started to work on the raw materials side, the crane which later struck him was stationary and unloading materials a distance of 160 feet up the track.

The crane was controlled by an operator whose view of the place where decedent and his foreman were working was unobstructed other than to the extent of smoke created within the defendant's plant. On the crane was a clanger or a gong of sufficient volume to give a signal above other noises and a foot brake with which the crane could be stopped within a distance of ten feet.

After the unloading operation, the crane was operated along the track by an agent of the defendant. The operator testified that he did not observe the employees of the independent contractor working on the rail and did not sound the gong or apply the brake. Decedent's foreman, who was standing on the same rail, observed the crane in time to avoid it, but the decedent, who was working from a sitting position, did not. He was struck and killed.

In my opinion, it was error to charge on assumption of risk with reference to subsequent negligence of the owner in the operation of its crane. Assumption of risk is based upon knowledge of obvious existing conditions. Charles O. Baker could not be charged with knowledge, nor would it appear obvious that the crane operator might thereafter be negligent in failing to give warning by sounding the crane's gong or in failing to use the foot brake to stop the crane so as to avoid striking persons working on the rail. A person cannot voluntarily act with reference to a condition or situation created by the negligence of another when that negligence has not yet occurred. He may presume that ordinary care will be exercised by the other person, until he has knowledge to the contrary. See Ricks v.Jackson, 169 Ohio St. 254, which holds, in the syllabus:

"1. In the absence of evidence that a person knew of a danger or that the danger was so obvious that he must be taken to have known of it, it cannot be held that such person assumed the risk of injury from such danger.

"2. One using the highway does not assume the risk of the negligent operation of a vehicle thereon where such one does not know of such negligent operation in sufficient time to avoid its consequences by the exercise of ordinary care.

"3. It is error to charge a jury with respect to the issue of assumption of risk where there is no evidence to support that issue."

The issue raised by the evidence, as pertaining to conduct of Charles O. Baker, was one of contributory negligence as distinguished from assumption of risk. As stated in the third paragraph of the syllabus of Ricks v. Jackson, supra, it was error to charge the jury with respect to assumption of risk where there is no evidence to support that issue. Such error is prejudicial if absent such error the verdict might have been different. Evidence that the verdict might have been different absent a charge on assumption of risk is clearly supported by the fact that in the first trial, in the absence of a charge on this issue, a verdict for the plaintiff resulted.

I have considered the possibility, but under the facts of this case, as a matter of law, even were the jury to have found that Charles O. Baker or his superior was told not to work from the raw materials side where he was injured, I would find him not to have become a trespasser under the circumstances in which he was performing work in that area.

For the reasons stated, I concur in the finding that the charge on assumption of risk by Charles O. Baker, upon the facts of this case, was error prejudicial to the plaintiff.

During the trial, at recess, defense counsel and an officer of Ohio Ferro-Alloys Corporation, the defendant, which officer was also a witness for Ohio Ferro-Alloys Corporation, carried on a conversation with two of the jurors, which conversation related, among other things, to efforts being made by Ohio Ferro-Alloys Corporation toward pollution control. By the testimony of the jurors the conversation continued for a period of from ten to fifteen minutes. Counsel for the plaintiff timely called this occurrence to the attention of the court and moved for a mistrial, which the court overruled. While such conduct on the part of either counsel or a party who is a witness either individually or as officer of a corporation may be excusable from the standpoint of its not having been carried on with any intention of influencing the jury, it is not proper, leads to a reasonable inference by the opposing party that he has not had a fair trial and cannot be either justified or condoned.

I, therefore, concur in the finding that it was error prejudicial to the plaintiff to have overruled the plaintiff's motion for a mistrial, which motion was timely made.

I concur in the finding that it was prejudicial error to charge the jury that, if plaintiff failed to prove defendant negligent either in failing to have its men maintain a lookout or in failing to give a warning, their verdict must be for defendant, for the reason that such instruction requires plaintiff to lose if the jury finds the defendant negligent in one but not both.

I cannot agree with the statement in the opinion of Judge Putman that "it is a distinction without a difference to talk about whether he [the decedent] was defendant's employee or the employee of an independent contractor." If he had been an employee of defendant, Ohio Ferro-Alloys Corporation, the administrator of his estate would have participated in the State Insurance Fund (workmen's compensation) based upon his employment by defendant rather than upon his employment by the independent contractor, and by such participation the instant action against defendant, Ohio Ferro-Alloys Corporation, would be barred.

For the reasons which I have set forth, I concur in the reversal of the judgment appealed from and the remand of this cause for new trial.