Iron Co. v. Rook Admr.

• Decision Date: 07 December 1915
• Docket Number: 14830
• Citation: 112 N.E. 212,93 Ohio St. 152
• Parties: The Chicago Ornamental Iron Co. v. Rook, Admr.
• Court: Ohio Supreme Court

112 N.E. 212

93 Ohio St. 152

The Chicago Ornamental Iron Co. v. Rook, Admr.

14830

Supreme Court of Ohio

December 7, 1915

Courts of appeals - Reversals by two judges - Where no evidence sustains judgment - Section 6, Article IV, Constitution, 1912 Supreme court - Questions to be determined - Negligence.

1. The provision of Section 6 of Article IV of the Constitution, as amended September 3, 1912, requiring all the judges of a court of appeals to concur in a judgment reversing a judgment of a court of common pleas, superior court or other court of record upon the weight of the evidence, has no application to a case where two of the judges of that court find that the judgment of the common pleas court is not sustained by any evidence.

2. A cause properly in this court is here for the determination of all questions presented by the record.

The defendant in error brought an action in the court of common pleas of Mahoning county to recover damages from the plaintiff in error for negligently causing the death of his decedent, Abraham Cable, on the 16th day of September A. D. 1913.

At the time of receiving the injuries resulting in his death Abraham Cable was employed by The Chicago Ornamental Iron Company in putting on new devices for opening and closing the doors leading to an elevator shaft. The Otis-Hough Company was installing these elevators, and in doing this work had constructed a platform in the elevator shaft. The platform is fully described and the manner of its construction explained by the evidence.

Cable had been assisting Anderson, his foreman, in putting these devices on the elevator door and had just finished the work. In doing this work it was necessary to step inside the elevator shaft onto the platform erected by The Otis-Hough Company. When Anderson and Cable had finished their work Anderson stepped into the corridor. He heard a noise, turned and saw Cable falling through the open space between the platform and the wall of the elevator shaft.

The petition averred negligence on the part of Cables employer in not using ordinary care in furnishing to Cable a reasonably safe place to work.

The Chicago Ornamental Iron Company denied negligence on its part and averred that the death of Cable was due entirely to his own negligence.

Upon the issue joined by the pleadings the cause was submitted to a jury, resulting in a verdict for the administrator in the sum of $8,000.

A motion for a new trial was made and overruled and judgment entered upon the verdict.

Error was prosecuted to this judgment in the court of appeals. That court affirmed the judgment of the common pleas and caused the following entry of affirmance to be entered upon its journal:

"Upon consideration whereof, two of the judges of said court of appeals, to-wit: The Honorable John Pollock and the Honorable William H. Spence find that in the record and proceedings aforesaid, substantial justice has not been done to the party complaining, and that there is error manifest upon the face of the record to the prejudice of the plaintiff in error in this, to-wit: that there is no evidence of any negligence upon the part of said plaintiff in error, as claimed in the amended petition, and that therefore, the verdict and judgment rendered in the court of common pleas is against the weight of the evidence.

"To this finding one of the judges of said court of appeals to-wit: the Hon. W. S. Metcalfe dissents, and finds that said verdict and said judgment is not against the weight of the evidence. Said court not fully concurring in its said findings, it is therefore considered, ordered and adjudged that the judgment and proceedings of the court of com- mon pleas in said action be, and the same hereby are, affirmed."

A petition in error was filed in this court to reverse the judgment of the court of appeals, averring, among other things, that the case involves a question arising under the constitution of the state of Ohio.

Messrs Hine, Kennedy & Manchester, for plaintiff in error.

Mr. W J. Kenealy and Mr. E. H. Moore, for defendant in error.

DONAHUE J.

The particular constitutional question presented by the record in this case arises upon the construction of that portion of Section 6 of Article IV of the Constitution, as amended September 3, 1912, which reads as follows: "No judgment of a court of common pleas, a superior court or other court of record shall be reversed except by the concurrence of all the judges of the court of appeals on the weight of the evidence, and by n majority of such court of appeals upon other questions."

It is contended on behalf of the plaintiff in error that when two of the judges of the court of appeals found and determined that "there is no evidence of any negligence upon the part of said plaintiff in error, as claimed in the amended petition," that court should have entered a judgment of reversal.

The weight of the evidence involves a consideration of conflicting evidence or the probative force of evidence where there is no conflict.

Where no evidence whatever is offered to maintain a material averment in a pleading upon which issue is joined, then the party upon whom the burden rests must fail. If there is some direct evidence or evidence of facts and circumstances from which the truth of the averment might naturally be inferred, then there is some evidence for the consideration of a jury and the record in such case would present the question of the weight of the evidence.

The constitutional provision above quoted relates solely to the...