Gas & Electric Co. v. Johnston

• Decision Date: 19 March 1907
• Docket Number: 10142
• Citation: 81 N.E. 155,76 Ohio St. 119
• Parties: The Cincinnati Gas & Electric Company v. Johnston.
• Court: Ohio Supreme Court

81 N.E. 155

76 Ohio St. 119

The Cincinnati Gas & Electric Company v. Johnston.

No. 10142

Supreme Court of Ohio

March 19, 1907

Servant experienced in particular work - Cannot recover from master for injury, when - Rule where servant undertakes risk voluntarily - Law of master and servant - Rule of damages.

A servant experienced in the particular work in which he is engaged, and who knows the number of men required to prudently and safely perform the same, cannot recover from the master for an injury alleged to have been received by reason of the failure of the latter to provide a sufficient number of workmen to safely perform the work, where it is shown that such servant at the request, or by direction of the master, but voluntarily, and without protest or objection, undertook such work with full knowledge of the limited number of workmen employed, and of the risk, if any to which he would thereby be exposed. Van Duzen Gas &amp Gasoline Engine Co. v. Schelies, 61 Ohio St. 298 distinguished.

On February 26, 1903, Ben Johnston, as plaintiff, commenced an action in the Superior Court of Cincinnati against The Cincinnati Gas & Electric Company, as defendant, to recover damages for personal injuries sustained by him while in the employ of the defendant company. In his petition and the amendment thereto, he alleged, as and for his cause of action, that: "On the 8th day of May, 1902, plaintiff was in the employ of the defendant as a laborer, his work being that of a coal shoveler on a coal barge in the Ohio River moored to the landing owned and operated by the defendant, and which is known as the East End Gas Works in said city of Cincinnati.

"That on said day, while shoveling coal as aforesaid with three fellow-workmen, under the directions and control of a foreman employed by said defendant, in the course of plaintiff's employment, he, together with the three fellow-workmen, was ordered by said foreman to lift and move a very large and heavy timber, known as a spar, that helped to hold in place the barge on which he was working, which timber was much too heavy for four men to lift under the conditions then and there existing, and the lifting and moving of which was likely to injure them, all of which was well known to said defendant and its said foreman.

"He states that notwithstanding such danger, said plaintiff and his three fellow-workmen were so as aforesaid ordered to lift and move said spar by said foreman, and plaintiff, unconscious of the danger to him in obeying the order of said foreman, undertook, with said three fellow-workmen, to faithfully perform the said task assigned to him, and in so doing, because of the great weight of the said spar, he was severely and permanently ruptured, and rendered permanently and for the balance of his life disabled from performing any hard manual labor and from earning a living in any of the usual employments of a laborer. * * *

"He states that the said defendant wrongfully and negligently failed to furnish and provide sufficient help to lift the spar so as aforesaid lifted by plaintiff and three fellow-servants on the 8th day of May, 1902, under the order of plaintiff, as set out in the petition. And he states that by reason thereof and of the facts set up in the petition he was injured as stated in the petition herein. * * *

"The plaintiff, by reason of the premises, has sustained damages in the sum of $5,000, for which he asks judgment."

For answer, and as a first defense, the defendant, The Cincinnati Gas & Electric Company, denied each and every allegation in said petition contained, except the allegation that "it is a corporation created under the laws of Ohio." And for a further and second defense it alleged, "that if the plaintiff was injured as complained of in the petition, then that such injuries were the result of his own negligence and carelessness and not the negligence or carelessness of the defendant or any of its employes." To this answer the plaintiff filed no reply. The case was tried to a jury in the superior court, special term, and upon the conclusion of all the evidence the defendant requested the court to direct a verdict in its favor, which request was refused. Thereupon the cause was submitted to the jury and a verdict returned in favor of the plaintiff for $1,550. Thereafter, the defendant, The Cincinnati Gas & Electric Company, filed its motion asking for a judgment on the pleadings, notwithstanding the verdict. This motion was overruled by the court, and the defendant thereupon filed a motion for new trial. This motion was also overruled, a new trial denied, and judgment was entered upon the verdict. This judgment was affirmed by the superior court in general term. The Cincinnati Gas & Electric Company brings error, asking that the judgments of the courts below be overruled, and that judgment now be entered in its favor by this court.

Mr. George H. Warrington, for plaintiff in error, cited and commented upon the following authorities:

Coal & Car Co. v. Norman, 49 Ohio St. 598; Pennsylvania Co. v. McCurdy, 66 Ohio St. 118; Railroad Co. v. Barber, 5 Ohio St. 541; Railway Co. v. Beard, Admr., 20 C. C., 681; Green v. Railway Co., 5 C. C., N. S., 497; Johns, Admr., v. Railway Co., 3 C. C., N. S., 545; Krause et al. v. Morgan, 53 Ohio St. 26; Railway Co. v. Rogers, 57 F. 378; Railroad Co. v. Somers, 3 C. C., N. S., 638; Engine Co. v. Schelies, 61 Ohio St. 298; 20 Am. & Eng. Ency. Law, 2d Ed., 78; Rubber Co. v. Tobin, 3 C. C., N. S., 59; Hill, Admx., v. Railway Co., 22 C. C., 291; Railway Co. v. Rigby, 69 Ohio St. 184; Packet Co. v. Britton, 1 C. C., N. S., 33; Railroad Co. v. Whitacre, 35 Ohio St. 627; Railroad Co. v. Zepperlein, 1 C. C., 36; Railway Co. v. Woods, 9 C. C., 322; Trimble v. Doty, 16 Ohio St. 118; McCoy et al., Trustees, v. Jones et al., 61 Ohio St. 119; Traction Co. v. Forrest, 73 Ohio St. 1; Robison & Weaver v. Gary, 28 Ohio St. 241; Railroad Co. v. Hart, 10 C. C., 411; Railroad Co. v. Tehan, a minor, etc., 4 C. C., N. S., 145; Agricultural Works v. Creighton & Quivey, 21 Ore., 495; Martindale v. Price, 14 Ind. 115; Hudson v. Railway Co., 101 Mo. 13.

Mr. Raymond Ratliff and Mr. Franklin T. Cahill, for defendant in error, cited and commented upon the following authorities:

Engine Co. v. Schelies, 61 Ohio St. 298; Franc v. Nirdlinger, 41 Ohio St. 300; Lovell v. Wentworth, 39 Ohio St. 614; Woodward v. Sloan, 27 Ohio St. 592; Hudson et al. v. Voigt, 15 C. C., 391; Railway Co. v. Roos, Admr., 9 C. C., 203.

CREW J.

Two questions are presented by this record, either of which if answered in the affirmative disposes of this case and determines the judgment proper to be entered herein. They are: 1. Was the defendant below, The Cincinnati Gas & Electric Company, after verdict, entitled to have judgment entered in its favor upon the pleadings? 2. Is said company, upon the record here presented, entitled to judgment upon the undisputed facts?

The first of the above propositions must, we think, upon authority of Lovell v. Wentworth, 39 Ohio St. 614, be answered in the negative. The first clause of the syllabus in that case is as follows: "If no reply is filed to an answer of new matter constituting a defense, but the case is tried without objection, as though such allegation had been denied, a demand for judgment on the pleadings after each party has introduced his evidence, is too late." In the present case the demand for judgment was not made by the defendant until after the verdict. The case was tried without objection, and as though the allegation of contribu- tory negligence in the answer had been properly put in issue by a reply. By treating this allegation as if denied, and proceeding to trial upon the merits as though issue had been joined upon this averment of the answer, the defendant below waived its right to demand a judgment on the pleadings, and its motion asking that judgment be so entered was therefore properly overruled. Lovell v. Wentworth, supra; Franc v. Nirdlinger, 41 Ohio St. 300; Woodward v. Sloan, 27 Ohio St. 592.

2. Is the plaintiff in error entitled to judgment in this case upon the undisputed facts? We learn from the record, that the plaintiff below, Ben Johnston, had been in the employ of The Cincinnati Gas & Electric Company as a laborer, for at least five years immediately preceding the 8th day of May, 1902 which is the day on which he was injured. His work was that of coal shoveler, and his place of work on coal barges in the Ohio River at the dock or landing owned by the defendant company and known as the East End Gas Works in the city of Cincinnati. This dock or landing is located at the foot of an incline plane railway, on which, by means of cars, the coal is carried from the boats or barges to the retorts of the company, where it is used. In unloading a barge it frequently becomes necessary to shift or move the same, in order that the coal may be taken out from different parts of the boat, and in this manner the weight on the barge be kept properly distributed. When a barge has been emptied it is necessary to shift or change its position so as to permit a loaded barge to take its place, and in removing the empty barge from its position next the shore, it is necessary to handle and use a heavy timber or spar. When a barge is emptied the workmen at once remove it, and in doing so are required to use this spar. The number of shovelers that were employed on a barge varied from time to time from four to eight or ten. On the morning, and at the time, when Johnston was injured there were four men on the work, and when they had emptied the barge on which they were working they proceeded to move it out into the river, using this spar. In handling or lifting the spar Johnston was injured. The only default or...