American Steel & Wire Co. v. Sieraski
| Decision Date | 07 May 1941 |
| Docket Number | No. 8613.,8613. |
| Citation | 119 F.2d 709 |
| Parties | AMERICAN STEEL & WIRE CO. v. SIERASKI. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Clan Crawford, of Cleveland, Ohio (Squire, Sanders & Dempsey and Thos. M. Kirby, all of Cleveland, Ohio, on the brief), for appellant.
Marvin C. Harrison, of Cleveland, Ohio (Harrison & Marshman and Hedrick & Hedrick, all of Cleveland, Ohio, on the brief), for appellee.
Before HICKS, ALLEN, and MARTIN, Circuit Judges.
On the verdict of a jury in the District Court, Benjamin Sieraski, an employee of The Thornton Sheet Metal Company, was awarded judgment for damages for personal injuries received by him while working on premises of appellant, The American Steel & Wire Company. Appellant urges that, because at the time of the accident appellee was employed by an independent contractor, the injured workman assumed the risk in the circumstances of the case and that the record reveals no breach of legal duty on the part of appellant.
By contract, appellee's employer had undertaken the rehabilitation of appellant's coke plant. This work embraced the repair of disintegrating tanks and plates, the fixing of furnaces, the replacement of flooring and the repair of eroded gas mains. The use of welding machines was necessary and a dozen or more of these devices, which for mobility were fastened to four-wheeled, wagon-like contrivances, had been placed by the contractor in appellant's plant at various spots where repair work was progressing. On the morning of the accident, a foreman of the Thornton Company had hoisted one of the welding machines to a concrete platform about eight feet wide, 800 to 1,000 feet long, and elevated ten or twelve feet above the surface of the ground. He instructed the appellee to assist two other workers in moving the welder to a point where it was needed on the platform.
To comply with this order, appellee and his fellow-workmen were compelled to walk along the platform, which ran alongside the coke ovens a distance of eight hundred to a thousand feet and had been constantly walked upon by men employed by both companies. This same platform had been used previously by others engaged in moving welding machines under instructions of their foremen.
One of his co-workers was pulling the welding machine carriage from the front; the other was pushing the four-wheeled apparatus from the inside rear; and the appellee, himself, was pushing the machine from an outside rear position nearer the ground-side of the platform, when suddenly and unexpectedly the right rear wheel of the welder sank to its axle through the concrete platform. This caused the welder to swerve in such manner as to knock appellee off the platform and hurl him to the ground below, to his serious personal injury.
Appellee testified that he had received no warning from anyone that the platform was defective or dangerous, and that he had observed no holes in it. In view of the jury verdict, his testimony must be accepted as true, though he was contradicted by witnesses introduced by the appellant. It should be noted that the independent contractor who employed and had control of appellee in his work was not engaged in repairing the defective concrete platform. Indeed, there is evidence, not only that the platform was used customarily as a walkway by employees of appellant, but also that it was used by them in moving materials, including coke and all kinds of scrap.
We quote from the testimony of the appellee:
Much of appellant's argument is seemingly based on the erroneous assumption that on this appeal we are free to determine whether a preponderance of evidence supports the jury verdict. As should be known, we are concerned merely with finding whether there is substantial evidence to support the verdict.
The record contains unequivocal, substantial evidence to the effect that employees of appellant used the platform not only as a walkway, but for the transportation of heavy materials; that appellee had observed such use; that prior to the accident, the use of the platform by employees of the independent contractor as a support for welding machines was known to and not forbidden by appellant; that the platform was known by appellant but unknown by appellee to be dangerous and unsafe; and that appellant failed to warn appellee of such hazardous condition. Assuming, as we must, that the jury based its verdict upon such evidentiary facts, our conclusion is that appellant has properly been held legally liable for appellee's injury.
In Hozian v. Casting Co., 1937, 132 Ohio St. 453, 9 N.E.2d 143, 112 A.L.R. 333, the Supreme Court of Ohio, in the syllabus, states: "When the owner or occupier of premises engages an independent contractor to do work thereon, an employee of the contractor, while executing the work, is impliedly there at the request of the owner and is an invitee toward whom the owner owes the duty of exercising ordinary care." Among other authorities, the Ohio Court cites the opinion of this court in McGinty v. Pennsylvania Railroad Company, 6 Cir., 6 F.2d 514, 515, in which, in reversing a...
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Henger v. Smith, 4596.
...S.W. 803, loc. cit. 804(1); Kuptz v. Ralph Sollitt & Sons Const. Co., 5 Cir., 88 F.2d 532, loc. cit. 534(1, 3); American Steel & Wire Co. v. Sieraski, 6 Cir., 119 F.2d 709, loc. cit. 710(3); Holt v. Texas-New Mexico Pipeline Co., 5 Cir., 145 F.2d 862, loc. cit. The fact that he had been tol......
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...circumstances of this case. Specifically, the plaintiff calls our attention to the decision of this court in American Steel & Wire Co. v. Sieraski, 6 Cir., 1941, 119 F.2d 709. In that case an employee of an independent contractor received injuries resulting from a defective platform on the ......
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...the request of the owner and is an invitee toward whom the owner owes a duty of exercising ordinary care." American Steel & Wire Co. v. Sieraski, 119 F.2d 709, 709 (6th Cir.1941) (quoting the syllabus of Hozian v. Crucible Steel Casting Co., 132 Ohio St. 453, 9 N.E.2d 143 (1937)); see also ......