Centrello v. Basky

• Decision Date: 13 July 1955
• Docket Number: No. 34293,34293
• Citation: 128 N.E.2d 80,164 Ohio St. 41
• Parties: , 57 O.O. 77 CENTRELLO, a Minor, Appellee, v. BASKY et al., Appellants.
• Court: Ohio Supreme Court

Page 41

164 Ohio St. 41

128 N.E.2d 80, 57 O.O. 77

CENTRELLO, a Minor, Appellee, v. BASKY et al., Appellants.

No. 34293.

Supreme Court of Ohio.

July 13, 1955.

Syllabus by the Court.

1. Although contributory negligence, the essence of which is carelessness, and assumption

of risk, the essence of which is venturousness, are not identical, they are related and may coexist in the same case.

2. Even though the pleadings do not raise assumption of risk as an issue, where it enters the case by virtue of the evidence, the court should charge on that subject.

3. Where the jury returns a general verdict for the defendant, and where on the evidence presented it might have found that the defendant was negligent and the plaintiff contributorily negligent or that the plaintiff deliberately and heedlessly exposed himself to an apparent risk, the court may properly charge on both contributory negligence and assumption of risk.

4. Where a general verdict is returned for one of the parties, and the mental processes of the jury are not tested by special interrogatories to indicate which issue was determinative of the verdict, it will be presumed that all issues were resolved in favor of the prevailing party, and, where a single determinative issue has been presented free from error, error in presenting another issue will be disregarded.

5. The trial judge is not required to give to the jury before argument any special instruction which is not accurate or correct in essential details or which under the facts of the particular case states the law too strongly against one of the litigants.

6. It is not prejudicial error to refuse special instructions before argument, where the substance thereof has been embodied in other requested special instructions given before argument at the instance of the same party. (Paragraph two of the syllabus in Limbaugh v. Western Ohio R. Co.,94 Ohio St. 12, 113 N.E. 687, approved and followed.)

7. Generally, instrumentalities or machines dangerous per se are those which in their way nature or design are calculated to do injury. A stationary concrete mixer of standard construction in visible and audible operation is not in and of itself a dangerous instrumentality or machine.

8. Even though a paragraph in a general charge taken by itself is improper and misleading, yet where, considered in connection with the whole charge and the entire instructions of the court to the jury, it is apparent that no prejudicial error resulted, the judgment rendered on a verdict will not be reversed for such error. (Paragraph two of the syllabus on Oschner v. Cincinnati Traction Co., 107 Ohio St. 33, 140 N.E. 644, approved and followed.)

This cause originated in the Court of Common Pleas of Mahoning County. It was brought by Ronald Centrello, a minor, by his father and next frient, Joseph Centrello, against James Basky, Joseph J. Basky and Elizabeth J. Basky to recover damages for injuries received by plaintiff through the claimed negligence of the defendants, when plaintiff's right hand came in contact with the moving blades of a Jaeger portable concrete mixer driven by a gasoline motor, in use by the defendants, James Basky and Joseph J. Basky, contractors and brothers, while they were engaged in the construction of the chimney of a dwelling house on Shadyside Drive in Boardman Township, Mahoning County, Ohio. During the trial Elizabeth J. Basky was voluntarily dismissed from the action.

It is alleged in the petition that the concrete mixer was placed on a public sidewalk adjacent to the house under construction; that the defendants had caused large piles of dirt and sand to be thrown about such mixer on the sidewalk; that on or about April 9, 1952, plaintiff was walking along the sidewalk and in attempting to pass around the concrete mixer he slipped on the sand and debris surrounding it with the result that three fingers of his right hand were caught and injured by the moving blades of the mixer.

The petition alleges that the defendants were negligent in four respects:

'1. In carelessly and negligently obstructing the sidewalk on Shadyside Drive by placing thereon sand, dirt, and other debris.

'2. In carelessly and negligently placing on said sidewalk a cement and/or mortar mixer with the blades open and exposed.

'3. In carelessly and negligently mixing cement and/or mortar with a machine with blades exposed and unattended.

'4. In failing and neglecting to warn or in any manner apprise persons using the sidewalk, and especially this plaintiff, of the dangerous machinery aforesaid which was then in operation and unguarded.'

Each of the defendants filed an answer, which after certain formal admissions, ends with a general denial.

After a trial before the court and a jury, the jury rendered a general verdict for the defendants. Judgment was entered thereon and a motion for a new trial was overruled.

An appeal on questions of law was taken to the Court of Appeals, which reversed the judgment below and remanded the cause for a new trial for three reasons:

1. Prejudicial error on the part of the trial court in refusing to submit to the jury before argument three of the special instructions requested by plaintiff.

2. Prejudicial error by the trial court in modifying and qualifying in the general charge a written special charge given before argument at the instance of plaintiff.

3. Prejudicial error committed by the trial court in the general charge by submitting the issue of assumption of risk, which was not pleaded.

The cause is now in this court for decision pursuant to the allowance of a motion to require the Court of Appeals to certify its record.

William E. Pfau and William E. Pfau, Jr., Youngstown, for appellants.

Edward L. Williams, Youngstown, for appellee.

ZIMMERMAN, Judge.

To gain a fair perspective of this case and of the factors which apparently influenced the jury in returning its verdict for the defendants, an outline of parts of the evidence is necessary.

At the time of his injury on the afternoon of April 9, 1952, plaintiff was 10 years of age. He was in the fourth grade of school, received good marks, was a Cub Scout and had won a number of merit awards. At the trial he testified on direct examination that, as he was walking around the concrete mixer, he slipped on the sand, and 'I made a grab for the machine with my hand, slipped off the edge of it and went in.' This was the only evidence offered by plaintiff as to how the injury occurred.

On the cross-examination of plaintiff, the following transpired:

'Q. You could hear this mixer running the day the accident happened, could't you, as you came up the sidewalk? A. Yes.

'Q. And you knew that cement was being mixed inside of it? A. I didn't know it was being mixed inside.

'Q. But you knew the mixer was running? A. Yes.

'Q. And you knew that it would be dangerous to put your hand into it, didn't you? A. I don't understand.

Q. Well, you knew that with the machine like that running it might be dangerous if you put your hand into or against that machine, didn't you? A. Yes.

* * *

* * *

'Q. When you fell, ronald, how did you fall, could you kind of show us? A. I don't recall.

'Q. You don't recall how you did fall? A. No.

'Q. Well, would you be good enough to come down here just a minute, please. (Witness leaves the stand.)

* * *

* * *

'Q. If you will please, pretend you are walking up the sidewalk like this, and then just show us how you walked around the mixer. Pretend that chair is the mixer. Just come over here. Just show us, if you please, on which side of the mixer you walked? A. I walked on this side.

'Q. You walked over to the right of the mixer. Where were you when you fell? Pretend this chair is a mixer? A. I don't recall.

'Q. Were you a little bit past the mixer or right alongside of the mixer? A. I don't know.

'Q. You don't know? A. No.

'Q. Can you show us how you fell? A. No. It happened so fast I don't know.'

On the day the injury occurred, James Basky was laying bricks in the building of a chimney. Joseph J. Basky was in charge of operating the concrete mixer and was engaged in carrying concrete in buckets from the mixer to his brother. He testified that he was never away from the mixer for more than a few minutes at any time.

The blades which caused plaintiff's injury were on the inside of a metal drum into which sand, concrete and water were poured. Extending outward from the opening of the drum was a flange or lip some three or four inches wide, designed to prevent the mixture from slopping out of the drum.

During the construction work, a number of children of all ages and sizes frequented the premises. They were chased away repeatedly by defendants and other workmen and were told to stay away. Plaintiff's father had warned him to stay away from the new house and not go around any house that was being built.

Neither the defendants nor three witnesses they produced actually saw the injury. The three witnesses were a real estate dealer, a lumber salesman and a carpenter-contractor.

James Basky testified:

'I heard a thump and then I turned. * * * I seen Ronnie Centrello by the mixer * * * I started to come down * * * I heard Ronnie Centrello holler, 'My God, I cut off my finger.''

After he got out of his automobile and as he was approaching the house under construction by the Baskys, the real estate dealer saw two children 'playing in front of the concrete mixer.' As Joseph Basky and the three witnesses referred to were talking in a driveway near the concrete mixer they heard a scream, looked and saw plaintiff standing at the far end of and facing the mixer and holding one hand with the other. Plaintiff then started to run away.

Joseph Basky, who ran and caught up with him, testified as follows:

'Well, I caught him and I asked him where he lived. I said, 'Come on, I will take you over to your mother,' and he said, 'I don't want to go home'; he said, 'My father will give me a...