Hilleary v. Bromley

OPINION

BY THE COURT:

In the Court below an amended petition was filed by the plaintiff stating that as a carpenter he had entered into a contract with defendants for applying siding upon dwellings and that he personally worked in the performance of said contract; that Bromley and Smotkin were partners engaged in furnishing siding upon buildings; that prior to April 6, 1940, defendants agreed to furnish plaintiff with certain equipment including a wooden ladder to be used by plaintiff to erect a scaffold upon which plaintiff would stand and work in performing a contract between plaintiff and defendant; that on April 6th defendant did furnish to plaintiff a wooden ladder for use in the performance of the contract; defendant knew the purpose for which the ladder was furnished and that its use for which the ladder was furnished was inherently dangerous to plaintiff and that defendants well knew that the use by the plaintiff of a defective ladder was imminently dangerous to plaintiff.

It is alleged that on April 6th plaintiff was using the ladder in the manner for which the same was furnished by defendant and was working thereon on a scaffold erected on said ladder at a point 16 feet above the ground; that the sides of the ladder split allowing the rungs thereof to fall down and eause the planks upon which plaintiff was working to tip and throw him to the ground injuring him as particularly described.

It is alleged that the injuries described were the direct and proximate result of the negligence of the defendants in certain particulars.

(1) Defendants were negligent in that they failed to furnish a ladder which plaintiff could use with safety.

(2) Were negligent in that they failed to ascertain the condition of the ladder furnished the plaintiff and to warn plaintiff that the ladder was unfit for the use to which it was being placed.

(3) Defendants were negligent in that they furnished plaintiff a ladder made of wood of insufficient strength to support the scaffold erected by the plaintiff and the weight which defendant knew plaintiff would place upon the scaffold.

(4) They were negligent in that they furnished plaintiff a ladder with the sides made of pieces of wood with defective grain. , ;'«i;

It is alleged that as a direct result of the negligence of the defendant plaintiff suffered the injuries enumerated, for which he asks judgment in the sum of $25,000.00.

The defendants for answer admit that they were doing business as a partnership under the name of Bromley Siding Company and as such were engaged in furnishing siding to be applied on dwellings and that they entered into a contract with the plaintiff for the application of the siding by plaintiff to a dwelling described in the petition; that they knew a ladder or ladders were ordinarily used in the application of such siding, knew the purpose of such ladder in that connection and knew the use of a defective ladder might result in injury. They admit that the accident occurred during the progress of the work, and that the plaintiff suffered injury, but deny all other allegations.

By way oí separate defense they averred that they entered into a contract in writing with the plaintiff on the 3rd day of April, 1940, for the application of siding to the dwelling in question, and that the provisions thereof contained the only agreement between the parties; that defendant had previously purchased and maintained equipment includng ladders and that defendants and their employees were allowed the use thereof upon contracted work and that no item included within such equipment was inherently dangerous and that defendants at no time knew of or by the exercise of every reasonably care could have known of the defects existing in such equipment; that any injury the plaintiff may have suffered was without fault on the part of the defendants, but solely because of the carelessness and neglect of the plaintiff himself or his own employee in the selection, inception and placing and the manner of use of the particular ladder complained of or in placing and the manner and use of triangular hooks suspended from such ladder or by reason of excessive weight improperly distributed.

The plaintiff replies denying every allegation of the answer not an admission upon his part.

The cause proceeded to trial and after the plaintiff’s witnesses had been examined motion was made by the defendant for an instructed verdict in behalf of the defendant for the reason that the evidence produced on behalf of the plaintiff did not disclose any liability of the defendant. This motion was sustained by the Court and the jury instructed to bring in a verdict on behalf of the defendants. A motion was made for a new trial and said motion was overruled and judgment entered for the defendants.

Thereupon notice of appeal was given and the cause is before this Court on questions of law.

The Court in sustaining the motion directing a verdict in favor of the defendants stated briefly his reason, which could be summarized, that the Court has come to the conclusion that the plaintiff in order to recover must make out a case against the defendants upon negligence. There must be a showing of the violation of a duty owing by defendants to the plaintiff. “The duty in this case is that of furnishing of a ladder and other equipment by the defendants to the plaintiff. In accordance with their agreement this equipment was to be safe equipment. We must presume that in order for a violation of that duty there must be a breach by the defendants in knowingly or negligently furnishing such equipment to the plaintiff. We must keep in mind that the defendants are not insurers of the plaintiff’s safety.” “The record is devoid of the defendants’ knowing that the ladder was not a safe lad•der.” “Inspection was made by the plaintiff before his injury, which inspection failed to disclose any defect. Inspection was also made, as claimed, by the defendant, Bromley, which failed to disclose any defect.”

“The Court feels that if a recovery could be had in this case that the pertinent words of the statute, §12593 GC, ‘knowingly or negligently furnishes’, etc., must be complied with, but that the record in this case is devoid of knowledge or negligence.” The Court then instructed the jury to bring in a verdict for the defendant and in his statement to the jury added to his former statement to the effect that the plaintiff has failed to show negligence; that he has failed to show that defendants did not exercise ordinary care or violate a statute.

The Court has read all the testimony including the deposition given before the Court directed the jury to return a verdict for the defendant. There is one piece of evidence that the Court has been unable to find, which is to the effect that in the contract which is referred to as Exhibit “A” the plaintiff releases to the fullest extent the defendants from any damages that might result from the work .contracted for, either by the defendants or by those employed by him in pursuance of the work. For some reason this exhibit is not with the papers, although it is marked Exhibit “A”. The Court has also made reference to the fact that there was an agreement between the parties that the defendants should be relieved from liability on account of negligence of the defendant. It would serve no good purpose to go into detail as to the evidence adduced in this case, but in order that it might be understood it may be said that the defendants, then a partnership, and now a corporation, were engaged as a part of their occupation in placing sheet siding upon old buildings, which siding was so provided as to be placed at the disposal of the workmen in rolls. The rolls furnished in this particular case simulated a brick exterior and were fastened to the side of the house by workmen working on the scaffolding. The scaffolding in this particular case consisted of three ladders of 20 feet placed against the side of the building, to the upper rungs of which three jacks were attached which furnished a foundation for planks placed upon the jacks. The. plaintiff had ón a day preceding the accident assisted in placing this scaffolding on the opposite side of the house and at such time, as was his continual custom, inspected the ladders and the jacks and other equipment furnished by the defendants. On the second day the scaffolding was moved to the opposite side of the house and erected by the helpers employed by the plaintiff. The planks then placed in position were about 16 feet above ground, placed upon jacks supported by hooks over the rungs of the ladder. As the plaintiff took his position upon the ladder he heard a crashing sound and the plank upon which he was working tilted so that he was thrown to the ground a distance of 16 .feet, suffering serious injury. The evidence discloses the entire history of ladders exhibited by the deposition of the manufacturer of the ladder who testified that they were made from the best material that could be obtained and were scrupulously inspected at numerous points of manufacture. The dealer to whom the manufacturer sold the ladders also testified to inspection and that the ladders we re in suitable condition for the work required of them. They were not the heaviest type ladder made by the manufacturer, but had been used for a number of years for the purpose required of them on the day of the accident. The plaintiff and his witnesses all testified that they have always been careful in placing the ladders against the side of the house and always careful in ascertaining whether there were any defects or weaknesses that might render their use dangerous. It is testified that on a number of occasions the plaintiff detected defective ladders and refused to use them in scaffolding and was then furnished with proper ladders by the defendants.

The appellant’s assignments of errors in this Court are four, stating briefly:

(1) The trial court erred in directing the jury to return a verdict for the defendants at the conclusion of the plaintiff’s evidence.

(2) Trial Court erred in failing and refusing to submit the evidence to the jury.

(3) The Trial court erred in overruling plaintiff’s motion for a new trial.

(4) Other errors on the record.

The position taken by the plaintiff is that there was a contract between the plaintiff and defendants by which the defendants were to furnish equipment “which was good, safe equipment for him to use”. It is urged that this constitutes a contract binding upon the defendant to produce such safe equipment and that it is in addition to the common law obligation of the defendant. Counsel for defendant reviews in detail the testimony of the various witnesses.

Counsel for plaintiff divides his argument in three branches:

(1) The defendants were under the duty to furnish a safe ladder. The fact that the ladder broke is evidence of negligence which required the submission of the case to the jury.

(2) Independent of the duty imposed by the agreement, there was evidence of negligence which required the submission of the case to the jury.

(3) There was evidence shown that the defendants had violated the specific safety requirement adopted by the state of Ohio, Department of Industrial Relations.

Counsel cite a number of cases' from other states which the Court has read, but which do not appeal to it as relating to facts similar to those in this case.

Counsel cites Kelly & Sons v Howell, 41 Oh St 438; Jacobs v The Fuller & Hutsinpiller Co., 67 Oh St 70; 29 O. Jur., 467; 38 Am. Jur. p. 678 and 747; Popowich v American Steel Wire Co., 13 Fed. (2) 381; Steel Co. v Sheller, 108 Oh St 106; Variety Iron Co. v Poak, 89 Oh St 297.

Counsel also cites a criminal statute, §12593 GC, providing liability of employers for improper ladders or scaffolding. We are not convinced that this statute has such application to the case at bar that it would make its violation negligence per se, but we will not discuss that matter.

A very good discussion of the rules in relation to motions to direct a verdict may be found in Hornbeck & Adams’ Trial and Appellate Practice in Ohio, Section 91, et seq., where the rule is stated:

“Where from the evidence reasonable minds may reasonably reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence.”

See also Laub Baking Co. v Middleton, 118 Oh St 106. Also, Hamden Lodge v Ohio Fuel Gas Co., 127 Oh St 460. We are confronted with the rule in the Hamden Lodge Case. We must determine whether or not the evidence in this case is such that reasonable minds may reasonably reach different conclusions upon the question of fact, in which case such question of fact is for the jury.

Decided February 2, 1945.

The Court has made diligent search to find the contract between the plaintiff and defendant by which it is claimed that the defendant was released from liability. The Court is of the opinion that if there is such a contract that it would be a valid defense. It is referred to in the deposition of the defendant and also in the bill of exceptions as an exhibit, but we do not find it. If such a contract is in existence and is properly before the Court, we would be pleased if counsel would submit it for our inspection.

In view of the fact that negligence must be shown upon the part of the defendant, and the further fact that the evidence discloses conclusively that during the entire connection of the ladders at the time of their manufacture, sale and use, constant inspection disclosed no defects that could have been known to'the defendant, we arrive at the conclusion that the Court below was not in error in instructing the jury to return a verdict for the defendant. Judgment accordingly.

HORNBECK and GEIGER, JJ., and MONTGOMERY, J., concur.