Hawver v. Whalen
| Decision Date | 02 February 1892 |
| Citation | 29 N.E. 1049,49 Ohio St. 69 |
| Parties | HAWVER v. WHALEN et al. |
| Court | Ohio Supreme Court |
Error to circuit court, Cuyahoga county.
Action by Hawver against Whalen and others to recover for personal injuries received through defendants' negligence. From a judgment of the circuit court reversing a judgment of the common pleas, plaintiff brings error. Circuit court reversed and common pleas affirmed.
The other facts fully appear in the following statement by BRADBURY, J.:
Plaintiff averred in his petition ‘ that said defendants took up and removed said sidewalk in front of said premises, and built therein coal vaults and a private passage-way, and then relaid said walk in part, leaving openings therein some twelve feet long and four feet wide and some nine or ten feet deep,’ and ‘ covered said openings over with old and loose boards entirely insufficient to protect and make safe public travel upon said sidewalk, and said places were left by said defendants without proper protection, and without any light or signal to indicate danger; ’ and ‘ that the plaintiff * * * was lawfully traveling on and along said sidewalk, * * * without fault or negligence on his part, he stepped upon one of said boards, * * * when the same gave way and precipitated him into said excavation whereby * * * his ankle was dislocated and his leg broken,’ etc. These averments were all put in issue by the answer interposed by the defendants. The plaintiff in error prevailed in the court of common pleas. Thereupon the defendants in error instituted in the circuit court proceedings in error. which resulted in the reversal of the judgment of the court of common pleas on the ground that the latter court erred in the instructions which it gave to the jury upon the trial. To reverse the judgment of the circuit court, and reinstate that of the court of common pleas, is the object of the proceedings in this court.
Where the owners of a lot, in constructing thereon a building abutting on a street, make, by their employes, an excavation in the adjacent sidewalk for coal vaults, and an area to be used in connection with the building, it is their duty to guard it with ordinary care; and this duty is not shifted from them by letting the work of building the area walls and constructing the coal vaults to an independent contractor who is to furnish all the material and perform all the labor necessary therefor.
1. Where the owners of a city lot, in the course of constructing thereon a building abutting on a street, make, by their own employes, an excavation in the adjacent sidewalk for coal vaults, and an area to be used in connection with the building, a duty devolves upon them to guard it with ordinary care; and this duty is not shifted from them by letting the work of building the area walls and constructing the coal vaults to an independent contractor, who is to furnish all the material as well as perform the labor necessary therefor.
2. In such case, if the excavation is not guarded or covered with ordinary care, one who, without fault on his part, falls into it, and is injured, may maintain an action against the owner of the premises to recover damages therefor, although the defective covering had been put over it by the contractor or his servants.
E. J. Blandin , for plaintiff in error.
Estep, Dickey, Carr & Goff , for defendants in error.
BRADBURY, J., (after stating the facts .)
The defendants in error, who were also defendants in the court of common pleas, admitted in their answer to the petition of the plaintiff that they were the owners of a leasehold estate in the premises on which the building was being constructed, and that the street and sidewalks upon which it was situated constituted a thoroughfare on which there was ‘ a large amount of travel; ’ but they denied every other allegation of the petition. Notwithstanding this, however there is no real controversy in the evidence over any material fact in the case, except as to the kind and quality of the boards that were laid over the hole into which plaintiff fell, and extent of the injury he sustained thereby; the main contention of the defendants being that the work was being done by an independent contractor, and that the negligence, if there was any, was that of the servants of the latter, over whom defendants had no control, and for whose acts they were not responsible. Upon this theory of the case the defendants, on the trial in the court of common pleas, requested that court to instruct the jury as follows: ‘ (3) If the jury find from the evidence that the defendants had let the work of constructing the building and area in question to contractors, who were to do all the work and furnish all the materials on their own credit, with their own means, and that the defendants, while the work was in progress, had no possession or occupancy of the premises, and had no control of the mode or manner in which said contractors should do the work, other than to accept or reject the work as being in compliance or noncompliance with the contract, then the defendants are not responsible for any injury resulting to the plaintiff in consequence of the negligence of said contractors or any of their employes in not guarding the said area with proper protections or coverings.’ This instruction the court refused to give to the jury, and the defendants excepted. The doctrine contained in the instruction thus requested and refused is in strict accord with the holding of this court in Clark v. Fry, 8 Ohio St. 358, from which we are not inclined to recede, where the facts make it applicable, but on the other hand are not disposed to extend it to other states of fact, not strictly analogous to those of that case. The instruction thus asked and refused assumes that evidence had been submitted to the jury from which they could find a state of facts in all essential respects like that in Clark v. Fry, supra; that is, that the defendants had let the work of constructing the building to independent contractors, and had given to them the entire control and occupancy of the premises while the work was in progress. If the evidence did not tend to prove such a state of facts as the instruction assumed, the proposition of law which it embraced was an abstract one, and the refusal to give it to the jury was not error. It becomes necessary, therefore, to ascertain whether or not evidence had been introduced tending to prove the state of facts thus assumed. It is true that the circuit court did not reverse the judgment of the court of common pleas because of the refusal to give this instruction, but did so on the ground that certain instructions that were given were erroneous. Nevertheless, it becomes necessary to determine whether the rule declared by this rejected instruction was applicable to the facts or not; for, if so applicable, its rejection was error requiring a reversal of the judgment, and the judgment of reversal should be affirmed, although placed upon some other ground, which, in the opinion of this court, was not sufficient to warrant it. In such case the judgment would be the proper one, whatever may have been the reason assigned for its rendition.
The plaintiff placed his right of action upon this state of facts: That the defendants were constructing a large brick building, and had left a number of openings for areas along the front end of it, each of which extended along the end about 12 feet and out into the sidewalk 3 or 4 feet, over which it was their intention to place iron gratings, and...
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