Bosjnak v. Superior Sheet Steel Co.

• Decision Date: 01 August 1945
• Docket Number: 30182.
• Citation: Bosjnak v. Superior Sheet Steel Co., 145 Ohio St. 538, 62 N.E.2d 305 (Ohio 1945)
• Parties: BOSJANK v. SUPERIOR SHEET STEEL CO. et al.
• Court: Ohio Supreme Court

62 N.E.2d 305

145 Ohio St. 538

BOSJANK v. SUPERIOR SHEET STEEL CO. et al.

No. 30182.

Supreme Court of Ohio

August 1, 1945

Syllabus by the Court.

1. An employee of an independent contractor, while engaged in the erection of a building upon premises, the possession and control of which are retained by the owner, is an invitee to whom the owner owes the duty of exercising ordinary care to maintain the premises in a reasonably safe condition for use in a manner consistent with the invitation, and to inform the invitee of hazardous conditions of the premises and of activities thereon unknown by and not obvious to the invitee.

2. A special custom or usage in any particular trade business or profession, to be available to either party, must be specially pleaded.

3. To be controlling upon or effective in appraising the conduct of a party, evidence of custom and usage must relate to the particular trade, business or profession in which such party was engaged, unless it be shown he had knowledge of such custom and usage.

4. Sections 871-13, 871-15 and 871-16, General Code, are in pari materia, being parts of the same act, and should be considered and construed together. The terms 'safe' and 'safety,' as applied to employment or place of employment within the provisions of Sections 871-15 and 871-16, General Code, are defined by Section 871-13, General Code, as 'such freedom from danger to life, health, safety or welfare of employees or frequenters as the nature of the employment will reasonably permit.' Such definition is explanatory of the standards of conduct prescribed by Sections 871-15 and 871-16, General Code. An instruction to a jury embodying the requirements of those sections unaccompanied by the limitation set forth in Section 871-13, General Code, is erroneous.

5. Generally, where, in instructing the jury, the court states a correct rule or principle of law and also states an incorrect rule or principle of law with reference to the same subject matter, no presumption arises that the correct rule was applied by the jury in the consideration of the issue presented, and the error in giving the incorrect rule will be deemed prejudicial.

Appeal from Court of Appeals, Stark County.

Charles F. Scanlon, of Akron, and Black, McCuskey, Souers & Arbaugh and Donald K. Merwin, all of Canton, for appellant.

John D. Gardner and Jack N. Berkman, both of Steubenville, for appellee.

This case originated in the Court of Common Pleas of Stark county. It is an action to recover damages for personal injuries suffered by plaintiff while in the performance of his duties as an employee of R. G. Smith, Inc., but on the premises of the defendant, the Superior Sheet Steel Company. That company is a corporation engaged in the business of manufacturing steel at Louisville, Stark county. The action was brought against that company and the Ohio Power Company, but a verdict was directed by the court in favor of the latter company.

At the time of plaintiff's injury, R. G. Smith, Inc., pursuant to a contract theretofore entered into with the Superior Sheet Steel Company, was engaged in erecting a steel building, referred to as the bailer building, as an addition to the manufacturing plant of the latter company, in accordance with plans and specifications prepared by that company.

The concrete foundation upon which the building was to be constructed had been laid by the Superior Sheet Steel Company, and the contract was essentially one for the erection of the complete structure upon such foundation at a specified price.

The plaintiff, Peter Bosjnak, as an employee of R. G. Smith, Inc., was a construction iron worker and had been since 1936. His duties as such employee consisted of assisting in the erection of the steel framework of the building under construction and required him to climb over the girders and bolt and secure the iron work as it was raised from the ground to its proper position.

The building under construction was about 88 feet long and about 32 feet wide. Its height was 21.5 feet at the south wall and 17 feet at the north wall, the roof sloping from the south side of the building to the north. Along the north wall, immediately next to the building, a railroad spur track had been constructed parallel to the building.

North of the railroad tracks, upon an easement granted by the Superior Sheet Steel Company, the Ohio Power Company had erected and continued to maintain a certain power line carrying a voltage of 22,000 or more, upon poles 14 inches in thickness and about 30 feet in height. The line supplied the electric current used by the defendant company. The three wires constituting the power line were strung on insulators installed on 9-foot wooden cross-arms 26 feet and 6 inches above the ground, and crossed a roadway at approximately that height. The wire nearest the wall of the building under construction was about 17 feet distant therefrom. A roadway paralleled the building on the north and the west and was beyond the railroad spur track and the power line just referred to.

The plaintiff entered upon his duties at this place at noon Tuesday, September 23, 1941, and continued until Friday, September 26, on which day he was injured, but worked only two hours on Thursday. While engaged at his usual employment, he was called from his place of work upon the framework of the building to the ground where he was directed by his foreman to assist other employees then engaged in steadying a load of structural steel called purlins while it was being moved by a portable derrick or crane mounted upon a motor truck. While they were steadying these purlins, as the crane was backed in a northerly direction toward the north side of the bailer building, the derrick or crane came in contact with one of the wires of the power line and the plaintiff and other employees received a severe electrical shock and burns, as a result of which the plaintiff suffered very serious injuries.

Additional facts are stated in the opinion.

The negligence with which the defendant was charged was the maintenance of lines of wire transmitting electric current, where located, uninsulated and unprotected, and failure to give plaintiff notice or warning thereof.

Upon trial in the Court of Common Pleas, the jury returned a verdict for the plaintiff in the sum of $43,000, upon which judgment was rendered, and that judgment was affirmed by the Court of Appeals.

The case is before this court pursuant to the allowance of a motion for certification.

MATTHIAS, Judge.

The appellant complains first of the action of the trial court in rejecting its motion for a directed verdict and its subsequent motion for judgment notwithstanding the verdict.

The record presents no substantial controversy as to the facts. It is the contention of the appellant that they show no negligence on its part in any respect or any failure in the performance of any duty which could have been the proximate cause of the injury complained of; that if there were any hazardous conditions on its premises they were open and obvious and the risk thereof was assumed by the plaintiff and that the plaintiff was guilty of contributory negligence.

For convenience, the parties will be hereinafter referred to as plaintiff and defendant.

There is no justifiable controversy as to the relationship of the plaintiff and the defendant, nor should there be as to the duty of the latter to the former arising out of such relationship. Concededly the plaintiff, at the time of his injury, was on the premises of the defendant as an employer of a contractor then engaged in the erection of a building for the defendant. He was, therefore, an invitee of the defendant who accordingly owed him the duty 'to exercise ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation.'

The owner has the further duty of exercising reasonable care to inform the invitee of hazardous conditions of the premises and of activities thereon unknown by and not obvious to the invitee. Such duty, however, has reference only to the owner's plant and premises, and not to the contractor's equipment. 2 Shearman & Redfield on Negligence, Rev.Ed., 688, Section 279; 38 American Jurisprudence, 754, Section 96; Prosser on Torts, 635; 29 Ohio Jurisprudence, 465, Section 61.

Numerous cases are cited by these authorities, supporting the general proposition above stated.

2 Shearman & Redfield on Negligence, Rev.Ed., 688, Section 279, states the rule thus:

"An occupant of land owes to the servants of an independent contractor employed to do work thereon, the duty of exercising ordinary care to render the premises reasonably safe for the performance of the work.' But the common-law duty to furnish a safe place to work, even as extended by statute to include the tools and appliances without which the place to work would be incomplete for the purpose intended, refers to the owner's plant and not to the contractor's equipment. * * * The law requiring an owner to keep the place reasonably safe for a contractor and his subcontractors does not apply where the work itself is of an unsafe nature or the defects are due to the imperfect and negligent work of the contractor himself.'

Hozian v. Crucible Steel Casting Co., 132 Ohio St. 453, 9 N.E.2d 143, 112 A.L.R. 333, and cases cited are also in point. See, also, Davis v. Charles Shutrump & Sons Co., 140 Ohio St. 89, 42 N.E.2d 663.

The general rule applicable is concisely stated in the syllabus of the latter case and is supported by many decided case. It is as follows:

'Where the premises upon which construction work is to be performed by a contractor remains under the control of the principal employer while...