Bogenschutz v. Smith

JUDGE HOLT delivered the opinion oe the court. — 336 — The alleged negligence of the employer toward the employe is in this instance confined by the petition to the alleged obstruction of the gangway in the foundry of the appellant along which the appellee, as á moulder in his employ, together with the other workmen, carried molten iron in ladles from the cupola, as it is called, to the moulding floors. It is claimed that certain vessels for holding iron were along or upon the margin of the gangway, and that they, or the handles to them, extended into it some two or three feet, it being from six to ten feet wide, and that the passage of the workmen with their ladles filled with iron was thereby rendered quite dangerous. The appellee had worked in the foundry for the appellant for about four years; and it appears from the testimony offered by the former that the gangway had been obstructed more or less for a long time. It is not alleged in the petition that its condition was unknown to the appellee. It is well settled that when one enters upon an employment he assumes all the risk ordinarily attendant upon it. If it be necessarily attended with danger, the servant undertakes to exercise ordinary care upon his part to avoid it. The master must use ordinary care in providing proper and safe premises as well as proper machinery and material for the servant; but if, from any cause, it be not so, and the latter is fully aware of it, and without complaint or assurance to him from the master that it shall be remedied, he voluntarily continues the use of them, then he waives his right in case of injury to hold the master responsible, and is without — 337 — remedy. Tolenti non fit injuria. Thus, where the master knew that a scaffold was defective and rotten, over which his servant was passing in his work, not knowing of the danger, the former was held liable for the latter’s injury as occurring through the master’s negligence. (Roberts v. Smith, &c., 2 Hurl. & N., 213.) Also, where the employer knew that a ladder leading to his granary was defective and unsafe, and yet ordered his servant, who was ignorant of its condition, to carry corn up it, he was held responsible for an injury to the servant resulting from the defect in the ladder. (Williams v. Clough, 3 Hurl. & N., 259.) Sherman and Redfield on Negligence, section 94, say: “It is obvious, however, that an employer may relieve himself of all common law liability for accidents occurring to his servants through- defects in materials or in the character of fellow-servants by giving explicit warning of such- defects, and notice that he does not intend to remedy them. For servants remaining after such a warning must be deemed to assume the risk for themselves as much as if it were one of the ordinary risks of the business. The courts have gone further than this, and hold that if a servant knows that a fellow-servant is habitually negligent, or that the number of servants employed is insufficient, or that the materials with which he works are defective, and continues his work without being induced by his master to believe that a change will be made, and without plainly objecting, he is deemed to have assumed the risk of such defects.” In Wood on Master and Servant, p. 791, we find this language: — 338 — “The servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions: “1st. That the appliance was defective. “2d. That the master had notice thereof or knowledge, or ought to have had. “3d. That the servant did not Tcnow of the defect, and had not equal means of knowing with the master.” Thompson on Negligence, vol. 2, p. 1008, says: “If the servant, before he enters the service, knows, or if he afterward discovers, or if, by the exercise of ordinary observation or reasonable skill and diligence in his department of service he may discover, that the building, premises, machine, appliance, or fellow-servant, in connection with which or with whom he is to labor, is unsafe or unfit in any particular ; and if, notwithstanding such knowledge or means of knowledge, he voluntarily enters into or continues in the employment without objection or complaint, he is deemed to assume the risk of the danger thus known or discoverable, and to waive any claim for damages against the master in case it shall result in injury to him. * * * It may be stated as a general proposition that the master is under no higher duty to provide for the safety of the servant than the servant is to provide for his own safety. It follows that if the knowledge or the ignorance of the master and that of the servant in respect of the character of the machine are equal, so that both are either without fault or in equal fault, the servant can not recover damages of the master.” While the law imposes a duty upon the master, a correlative one is also upon the servant. He can not — 339 — continue without objection to use a machine or premises known to him to be dangerous at the risk of the master. This rule is well settled in England. In the late case of Griffiths v. The London, &c., Docks Company, decided by the English Court of Appeal on June 24, 1884, it was held that in an action by a servant against his. master to recover damages for personal injury caused by the defective state of machinery or premises or materials provided by the master for the purposes of the work, it is necessary, in order that the plaintiff; may succeed, to prove that the danger or defect which, caused the injury'was known to the defendant, and was not known to the plaintiff, and that a statement of' .claim, which does not allege both these facts, discloses no cause of action and is insufficient.” In this country it is not only supported by the text, writers, but by the decisions of courts of high authority, and has been adopted by this court. (Laning v. Railroad Co., 49 N. Y., 521; McGatrick v. Wason, 4 Ohio St., 566; Mad River, &c., R. Co. v. Barber, 5 Ohio St., 541; Buzzell v. Laconia M. Co., 48 Me., 113; Railroad Co. v. Doyle, 49 Texas, 190; Sullivan's Adm'r v. Louisville Bridge Co., 9 Bush, 81.) We do not mean to decide that there may not be cases where the servant has a right to rely upon the judgment of the master as to the safety of the premises or material to be used ; or that the servant is bound to inform himself as to them. Thus it is in general no part of the duty of a brakeman to inspect the track of a railway or to know that it has been safely constructed. The master may have supe — 340 — .rior means of knowledge, and the circumstances may ■authorize the servant to rely on him because of want of equal opportunity. The servant may be ignorant without fault, while the master is negligently so. The law to be applied to a case must, therefore, depend upon the facts shown; but generally, if a servant knows that •the material or machinery furnished him for work is defective and unsafe, or that the premises where he labors are dangerous, and he, without complaint or promise from the master of a change, continues to use them, he must be deemed to have waived any claim against the master for injury therefrom. The petition in this case is somewhat indefinite. It does not clearly appear whether the pleader intended to allege that the injury resulted from the act of a fellow-laborer, caused by the neglect of the master in not providing safe and proper premises, or simply that the injury was caused by the alleged improper obstruction of the gangway. Construing it, as we must, most strongly against the pleader, the latter construction must be adopted; and it was essential to the sufficient statement of the alleged cause of action that it should have been stated that the alleged defective condition of the gangway was unknown to the appellee. This defect in the petition was not cured by the answer or the verdict. The averment of a want of knowledge was essential to the statement of a cause of action. It is true, contributory neglect was pleaded as a defense; but it is purely a matter of defense, and can not supply an allegation essential to the statement of a cause of action. As to one the burden of proof is on — 341 — the plaintiff, while as to the other it is on the defendant. A verdict may cure an ambiguity in pleading, but does not avail if there be an omission- to allege a matter which is material to make out a cause of action. The following were the first, second and fourth instructions given to the jury : “The court instructs the jury that if they believe, from all the evidence in this case, that at the time the plaintiff was burned, the gangway in defendant’s foundry was obstructed by ladles or other utensils, so as to be rendered too narrow for the safe passage of plaintiff and other piece workmen in the employ of defendant, and if they believe from the evidence that the defendant or his superintendent or cupola boss, or workmen under charge and direction of defendant, his superintendent or cupola boss, caused said gangway to be so obstructed, or if said defendant, his superintendent or cupola boss, knew that said gangway was so obstructed, and permitted the same to remain, or if, by the use of the reasonable skill and diligence of an ordinarily prudent person, could have known that said gangway was so obstructed, and that defendant, his superintendent of cupola boss, could have known of said obstructions in said gangway, said defendant, his superintendent or cupola boss, permitted the same to remain in or upon said gangway, and that because of said obstructions in said gangway the plaintiff was -burned without contributory negligence on his part, as defined in instruction No. 6, then the jury must find for the plaintiff such compensatory damages as they shall, from all the evidence, find he has sustained, not exceeding the sum of $12,500, the amount claimed in the petition.” — 342 — “If the jury believe, from all the eyidence, that the plaintiff was, at the time mentioned in the petition, working for the defendant in his foundry, and that while so working for the defendant at piece work he was injured by molten iron poured upon him from the ladle of another hand also working for defendant; and if they further find that the ladles so used by said hands so working by the piece for defendant were prepared and delivered to said workmen by the defendant, his superintendent or cupola boss, and that said ladles were not properly prepared for such use by said superintendent or boss, by want of care of the latter, or from a defect in the drying apparatus unknown to the plaintiff; and that the gangway prepared by defendant or his superintendent, over which the men so working for defendant ordinarily passed with their ladles filled with molten' iron, was obstructed or permitted to be obstructed by the defendant, his superintendent or other boss, or day hands in defendant’s employ and under his direction, so that same was left in a condition too narrow for workmen to safely pass with ladles filled with molten iron ; and that while so passing along said gangway, and because said ladles were not properly prepared for use, and because said gangway was so obstructed, the plaintiff, while in the exercise of such care as a man of ordinary prudence would use under the circumstances, the ladle of the plaintiff and another workman collided, and the molten iron from one of said ladles was thereby poured upon plaintiff’s leg and foot, and he was injured by the molten iron being so poured upon his leg and foot, the jury must find for the plaintiff such damages as he has suffered therefrom, not exceeding the sum of $12,500.” — 343 — “ If the jury believe, from the evidence in this case,' that the injury to plaintiff was caused by or resulted from gross negligence on the part of defendant, his superintendent or cupola boss, in the management of defendant’s foundry and in obstructing said gangway, or permitting it to remain obstructed after they knew, or could by the exercise of ordinary care and prudence have known, that the same was obstructed, and too narrow for the safe passage of plaintiff and the piece workmen in defendant’s employ, as set out in instruction No. 1, then the jury may, in addition,to the compensatory damages mentioned in said instruction No. 1, find for plaintiff punitive damages not exceeding in all the said sum of $12,500, the amount claimed in the petition.” The defect in the petition already pointed out was carried into the first instruction. It improperly failed to incorporate the idea, or to submit to the jury the question whether the obstruction in the gangway was known or unknown to the appellee. The second instruction is objectionable in several respects. It allowed the jury to consider whether the ladles in which the iron was carried were defective in construction, or whether the apparatus for drying them was sufficient, when these matters were, under the pleadings, not in issue. It submitted to them whether, through “want of care” upon the part of the appellant, the ladles were not defective, without defining the degree of care to be exercised by the appellant in their preparation. The jury were left to determine whether he was bound to use extraordinary or only ordinary care as to them and the drying apparatus; also leaving — 344 — out of view the questionjwhether, if defective, he could, by the exercise of ordinary care, have discovered it. It, moreover, also ignored the question of knowledge of the condition of the gangway upon the part of the appellee. No instruction as to the fitness of the ladles or drying apparatus should have been given, for the same reason that rendered it improper to submit to the jury in the fourth instruction the question whether the injury resulted from gross negligence “in the management of defendant’s foundry’’ — these matters were not in issue by the pleadings — and the last named instruction appears to have improperly assumed that the obstruction of the gangway, whether much or little, constituted gross negligence. Judgment reversed, and cause remanded for further proceedings consistent with this opinion.