Baker v. Continental Transportation Lines, Inc.

Hildebrant, J. This is an appeal on questions of law from a judgment for plaintiff for damages for personal injuries entered by the court below upon a special verdict by the jury. Plaintiff was a member, with twenty-two years’ experience, of a crew of painters under supervision of a foreman on the job engaged in painting the under structure of the bridge *15 erected by federal and state co-operation over Marshall Avenne in the city of Cincinnati and designed to carry the north-south, flow of traffic of Interstate route 75. Marshall Avenue at this point is a four-lane public thoroughfare carrying the flow of east-west traffic. The two curb lanes of Marshall Avenue had been barricaded with yellow barrels with yellow signs of approximately two feet by two feet, with red lettering warning “Danger Painters Overhead” with red arrows pointing overhead. This left the two center lanes of Marshall Avenue open to traffic, which were patrolled by the foreman and one helper cheeking the clearance and directing large trucks through the underpass when clearance was established, sometimes ordering the painters to hang on to a flange of an eyebeam so that without their weight the scaffolds would rise to permit necessary clearance. Under the direction of the foreman the scaffolding erected by the crew was supported by cables, numbered for the record, one, two and three. Cable No. 1, which was struck by defendant’s vehicle, was nearest the east end of the bridge toward Central Parkway, and cables numbered 2 and 3 were west of cable No. 1 and nearest toward the first street west of the bridge. Working in pairs, two men were on the scaffold supported by cables No. 1 and No. 2 over the south curb lane closed to east bound traffic, and the plaintiff and his partner were on the scaffold supported by cables Nos. 2 and 3 over the north curb lane closed to west bound traffic. Standing at work the painters could not see the area below nor traffic approaching thereon except when seated on the scaffold to receive paint and supplies by means of a rope from the foreman and a helper below. Approximately a minute before the accident herein, plaintiff had been supplied from below and while seated had observed the foreman in position to control and supply the other team and the helper in the position to supply his team. Plaintiff did not and could not see what happened, but the next thing he knew he had been precipitated to the ground and severely injured. It is abundantly clear from the record that the operator of defendant’s vehicle, his attention diverted by a pedestrian passerby, failed to observe the condition of the traveled area through which he was passing and the sag of the visible cable No. 1 with reference to clearance, so that he negligently drove his vehicle into cable No. 1 causing the accident precipitating *16 the painters to the ground and the resulting injuries to plaintiff. Defendant requested a special verdict of the jury, and the court, dismissing the jury at 10:17 a. m., entered into elaborate careful discussions with counsel with reference to the manner and form of submission of a special verdict, which resulted in submitting the following determinative issues and special interrogatories to the jury: “Q. Was the defendant, Continental Transportation, Inc., negligent in one or more particulars alleged in the petition?” “Answer: Yes.” “If the defendant was so negligent, was such negligence a proximate cause of any injuries that plaintiff may have sustained?” “Answer: Yes.” “Did the plaintiff assume the risk of any injuries that he might thereafter sustain when he went upon the suspended platform?” “Answer: Yes.” “If the plaintiff assumed the risk of any injury that he might thereafter sustain when he went upon the suspended platform was such assumption of risk a proximate cause of any injury he sustained?” “Answer: No.” “Was the plaintiff, Joseph Baker, negligent in any way?” “Answer: Yes.” “If the plaintiff, Joseph Baker, was negligent in any way, was such negligence a proximate cause of any injuries which he sustained?” “Answer: No.” “If, it is determined by the court from your answers to the questions in your special verdicts that the plaintiff is entitled to recover, what amount of money will compensate him for the injuries and damages, if any, which he sustained?” “Answer: $100,000.00 (one hundred thousand dollars and no cents).” “What was the distance between the underneath surface of the easternmost girder of the viaduct over Marshall Avenue and the cable beneath the girder?” “Answer: 2 ft. 7-% inches (approx.).” “Did the plaintiff, Joseph Baker, with his fellow workers construct and maintain a cable over the roadway to leave a space *17 less than 32 feet, 5 inches above the surface of the roadway?” “Answer: Yes.” “If yon find the defendant was negligent, state what the negligence consisted of?” “Answer: Did not exercise ordinary care, caution and did not observe existing conditions in the construction area.” The court refused to charge upon or submit a special verdict on the issue of nuisance, which refusal is defendant’s second assignment of error. It is sufficient to say that the public authority engaged in the construction of 1-75, of which this bridge is a part, is not subject to any statutory duty such as a municipality with reference to nuisance, and any interference with the traveling public in the use of the highway was a necessary, lawful and temporary interference while in the performance of a legal duty not coming within the definition or concept of nuisance. Defendant’s first assignment of error, the failure to withdraw the case from consideration by the jury at the close of plaintiff’s case and to instruct a verdict or render judgment for the defendant, is based upon defendant’s stated theory upon which defendant based its case, that when one undertakes to work in a place where the public has a right to be and which may endanger the movement of persons and vehicles in their use of such place, a duty is owed to such persons of adequate protection for such work. In support of such theory defendant cites Richman Brothers Co. v. Miller, 131 Ohio St. 424; Warden v. Pennsylvania Rd. Co., 123 Ohio St. 304; Jereb, Admx., v. Riss & Co., Inc., 169 Ohio St. 178; and Roettger v. John E. Hibben Dry Goods Co., No. 5608 in this court. We consider the theory untenable here and the citations inapplicable. They apply to a situation in reverse. No one seeks damages from Baker, the worker, or from one in the position of an owner employing an independent contractor to do the work. The cases cited by defendant require only due care of the worker, and the issues submitted were negligence and contributory negligence, both of which were submitted in the case at bar. Defendant’s third assignment of error is: “The court was in error in failing to inform or in failing to give the special verdict to counsel before argument and in refusing to give to counsel before argument the special verdict which the court *18 was required to give by law in this case, prior to argument, and in failing to follow the findings of the special verdict.” It is quite clear from the record of extended discussions between court and counsel concerning the determinative issues to be submitted that neither party nor counsel was prejudiced in the manner and form of the submission of the special verdict. Nor do we find any error by the court in disregarding the jury’s verdict that plaintiff was guilty of assumption of risk but that his assumption of risk was not a proximate cause of his injuries. The court submitted the issues of assumption of risk and proximate cause thereof without objection from plaintiff and at the request of defendant although correctly of the opinion that the doctrine was not an issue in the case. It is clear from the record that plaintiff was not aware of any danger from the approach of defendant’s truck, hence the doctrine could not apply and the jury verdict thereon was properly disregarded by the court, and, it having been erroneously submitted by the court at the request of defendant, no error prejudicial to defendant arises therefrom. While the jury answered the question, “Was the plaintiff, Joseph Baker, negligent in any way,” yes — they also answered that such negligence was not a proximate cause of any injuries to the plaintiff. No interrogatory testing of the answer as to plaintiff’s negligence was propounded such as the one directed to defendant’s negligence. We, therefore, find no error on the record in the submission of the special verdict with reference to the issue of contributory negligence. Defendant’s fourth assignment of error relates to the general charge and the reference to punitive damages. From a reading of the whole charge we find no error prejudicial to the defendant therein. The court has carefully examined assignments of error five, six, seven and eight, and finds no error set forth therein prejudicial to the defendant. After careful examination of the voluminous record and extensive briefs of counsel and the authority cited therein, we conclude no error prejudicial to defendant, appellant herein, appears on the record herein. The judgment is affirmed. Judgment affirmed. Hover, J., concurs.