Briere v. Lathrop Co.

• Citation: 258 N.E.2d 597,22 Ohio St.2d 166,51 O.O.2d 232
• Decision Date: 13 May 1970
• Docket Number: No. 68-703,68-703
• Parties: , 51 O.O.2d 232 BRIERE, Appellee. v. The LATHROP CO., Appellant.
• Court: United States State Supreme Court of Ohio

Page 166

22 Ohio St.2d 166

258 N.E.2d 597, 51 O.O.2d 232

BRIERE, Appellee. v. The LATHROP CO., Appellant.

No. 68-703.

Supreme Court of Ohio.

May 13, 1970.

Syllabus by the Court

1. Where an employee of a general contractor, in the scope of his employment, voluntarily and gratuitously undertakes to assist an employee of a subcontractor in moving a scaffold, the act must be performed with the exercise of due care under the circumstances, and the failure of the general contractor's employee to exercise such care, thereby proximately causing plaintiff to fall from the scaffold, results in liability of the general contractor for the resulting injury.

2. Where plaintiff in his petition alleges generally defendant's carelessness and negligence, and specifically alleges defendant's negligence in the placement of a scaffold upon which plaintiff was working, and where the jury's response to an interrogatory is that defendant's employee failed to warn the other worker, who had also been pushing the scaffold, that he was leaving and not to move the scaffold without help, there is no material variance between the pleadings and the facts adduced.

3. Where, in a negligence action reasonable minds may reach different conclusions as to whether plaintiff himself was negligent, the plaintiff cannot be held to be contributorily negligent as a matter of law.

4. Where conflicting evidence is presented regarding the danger of remaining on a scaffold being moved by two persons in an area where there are open pits in the floor, a jury question is presented as to whether plaintiff assumes the risk of injury arising from the scaffold falling into one of the pits and overturning, where he knowingly and voluntarily remains on the scaffold while it is being moved.

5. It is within the court's discretion to determine whether safety rules regarding the use of scaffolding, promulgated and published by a private association, are to be admitted in evidence, after consideration of the manner in which the rules were prepared and the extent of adherence to the rules as a custom of the trade or industry.

6. Prejudicial error does not arise from the failure to give a special instruction prior to argument if the proposition of law set forth therein is essentially contained in other special instructions given.

7. An interrogatory which assumes the existence of certain disputed facts, is improper as calling for a finding based upon assumed facts rather than upon facts established by the evidence. (Paragraph three of the syllabus of Bradley v. Mansfield Rapid Transit, 154 Ohio St. 154, 93 N.E.2d 672, approved and followed.)

The Lathrop Company, a general contractor, was employed by General Electric Company to construct a factory building. Harrington Electric Company and The Reilly Company, Inc., were subcontractors.

Roger Briere, a painter employed by Reilly, while working on an elevated movable scaffold, fell from the scaffold and sustained personal injuries. In this negligence action against The Lathrop Company, General Electric Company and Harrington Electric Company, Briere seeks to recover damages for the injuries sustained.

The case was tried to a jury. At the conclusion of plaintiff's case, a verdict was directed dismissing General Electric and Harrington Electric as parties defendant. Thereafter, the jury returned a verdict for the plaintiff and against the defendant, Lathrop Company.

On March 28, 1962, plaintiff's work in spray painting a ceiling required the use of a scaffold elevating plaintiff and a fellow worker about 13 feet above the floor. The scaffold, equipped with lockable rubber casters, was movable. In the floor of the plant were a number of unguarded open pits of varying size and depth, designed for the installation of machinery. In the area where plaintiff was plaintiff just prior to the accident there were three pits in a row, each approximately three by four feet, with a 16-inch space between them. Plaintiff observed the general work area, was acquainted with the fact that there were pits in the area where the scaffold was to be moved, and knew that movement of the scaffold required maneuvering between the pits. During the movement necessary to reach new areas to be painted, Briere and his co-worker remained on the scaffold platform.

Plaintiff's employer (Reilly Company), the painting subcontractor ordinarily supplied two men, 'pushers,' to move the scaffold, but on the day of the accident only one pusher employed by Reilly was available. Defendant Lathrop's superintendent, Smith, observed the presence of the single pusher and personally aided in the movement of the scaffold. The facts of Smith's involvement in this pursuant were in conflict at trial. Smith stated on direct examination as follows:

'Q. Now, without using the picture, can you, as best you possibly can, in your own words, tell the jury everything you did from the time you left your office, went over to the electricians and thereafter until the accident happened? Just tell it. A. I believe I would have to say from the time I left the electricians because traveling around the whole building, it would be hard for me to remember everything and every place I went that morning, but from the time involved in this accident, I had been talking to the electricians. I started back-I started to go back towards the office. I see these, this painter putting the scaffold over this pit, and I see it's in a hazardous position. I take a hold of the scaffold, steadied it while they pushed it up over the pit. I thought he was through with it, so I turned to walk away and I heard this crash. The man hit the floor. I turned around about 20, 25 feet away. '* * *

'Q. Would you tell the jury why, if there is a reason, you aided in steadying this scaffolding on that day? A. Because you've got a scaffolding that's on wheels. You've got two men on top, one man trying to move it. As it sits there, I could see a hazard. I tried to steady it. I went over, took a hold of the scaffold to keep it from rolling in the pit while he was moving it.

'Q. Did you believe it was in a position of safety? A. Yes. If he hadn't moved it, would have been.'

He testified further on cross-examination:

'Q. In your statement, Mr. Smith, you stated that you thought that Lilly had stopped pushing. A. He had stopped pushing.

Q. And walked away? A. He moved some conduit, so I turned-

'Q. You said you thought he had stopped pushing and you had walked away. You were not sure he had stopped pushing? A. What was I to do? Go down and ask him, 'Are you all through sir?'

'Q. You were in the act of moving the scaffold, were you not? A. I was not in the act of moving it. He was moving it, trying to do it alone.

'Q. And you offered to help him? A. I just simply took a hold of it with my hand to steady it and I set the things, the brakes on it and walked away.

'Q. Lilly knew you were at the other end of the scaffold, isn't that right? A. He probably knew I took a hold of it, yes.

'Q. But yet you walked away without letting Lilly know you were walking away. A. He wasn't blind. He was only 14 feet away. If I wasn't there, he would know it.' (Emphasis added.)

Frank Fuhrman, an employee of Harrington Electric, described the accident as follows:

'Q. And will you tell the jury what happened? A. Well, I was watching the painters on the scaffold and they were moving the scaffold and as they were moving it, it got stuck and they gave it an extra push, as far as I can remember, and it got away from them. One column of the scaffold dropped into this pit, throwing these painters off the scaffold.

'Q. Do you know was pushing the scaffold? A. Well, I assume that it was a ground man.

'Mr. Gallagher: Objection, your Honor.

'The Court: Sustained. Just tell us what you saw.

'Q. Just tell us what you saw. A. I saw two men pushing the scaffold.

'Q. Do you know who the men whre? A. One was the painters' helper and the other one was the superintendent for the general contractor.

'Q. Lathrop? A. Lathrop.' (Emphasis added.)

An interrogatory was submitted to the jury regarding its verdict for plaintiff as to the nature of defendant Lathrop's negligence, if any. The jury's answer was:

'Leaving the place of the accident without telling Mr. Lilly not to move the scaffold without help.'

The Court of Appeals affirmed the judgment.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Frank Leonetti, Cleveland, for appellee.

Hauxhurst, Sharp, Mollison & Gallagher, Michael R. Gallagher and John B. Robertson, Cleveland, for appellant.

DUNCAN, Justice.

The extent of our review is whether the jury's verdict, as enlightened by its answer to the interrogatory quoted in the statement of facts, rests within legally fair confines established by the pleadings, evidence, and the court's instructions.

Plaintiff's petition alleges defendant's carelessness and negligence in causing the scaffold he was using to go into an unguarded pit, topple, and cause plaintiff's injuries resulting from a fall. Plaintiff further specifically set forth a number of allegations generally sounding in the assertion that defendant failed to provide for him a safe place to work. In Wellman v. East Ohio Gas Co., 160 Ohio St. 103, 113 N.E.2d 629, this court held in paragraph one of the syllabus:

'Where an independent contractor undertakes to do work for another in the very doing of which there are elements of real or potential danger and one of such contractor's employee is injured as an incident to the performance of the work, no liability for such injury ordinarily attaches to the one who engaged the services of the independent contractor.'

A review of the facts concerning the relationship between Briere and the Lathrop Company shows nothing to require the application of a rule different from that announced in the Wellman case. Moreover, the jury's specific identification of defendant's negligence...