Plas v. Holmes Const. Co.

• Decision Date: 12 March 1952
• Docket Number: No. 32655,32655
• Citation: 157 Ohio St. 95,104 N.E.2d 689,47 O.O. 86
• Parties: , 47 O.O. 86 PLAS v. HOLMES CONST. CO. Inc.
• Court: Ohio Supreme Court

Page 95

157 Ohio St. 95

104 N.E.2d 689, 47 O.O. 86

PLAS v. HOLMES CONST. CO. Inc.

No. 32655.

Supreme Court of Ohio.

Decided March 12, 1952.

Syllabus by the Court.

1. In an action by a contractor's employee against a contractee for injuries resulting from the condition of the premises of the contractee, contributory negligence of such employee and also his assumption of the risks arising from those conditions constitute valid defenses. (Davis v. Charles Shutrump & Sons Co., 140 Ohio St. 89, 42 N.E.2d 663, approved and followed.)

2. The doctrine of comparative negligence has application in this state only in a personal injury action by an employee against his employer. Section 6245-1, General Code. (Bartson v. Craig, 121 Ohio St. 371, 169 N.E. 291, approved and followed.)

3. It is the duty of the trial judge to repress unwarranted charges of a scurrilous character and gratuitous personal attacks against a party to a suit in cross-examination and in argument to the jury; and the trial judge should interpose and not only admonish offending counsel and prevent further improper and prejudicial cross-examination and argument to the jury based thereon but should also promptly instruct the jury relative thereto. Failure of the judge so to do constitutes prejudicial error.

4. The two-issue rule has no application where improper and prejudicial cross-examination and argument to the jury based thereon are such as to engender passion and prejudice against the losing party and adversely affect him as to all the issues in the case and influence the general verdict of the jury. (Acrey v. Bauman, Jr., 134 Ohio St. 449, 17 N.E.2d 755, approved and followed.)

Clarence R. Plas, the plaintiff, appellant herein, who will be hereinafter referred to as plaintiff, was an employee of the National Tube Company working as a surveyor's rodman at its plant in Lorain, Ohio, in the course of construction of a new mill.

The Holmes Construction Company, the defendant, appellee herein, hereinafter referred to as the defendant, was engaged in doing a part of that work under a contract with the National Tube Company.

Included in the work being done by the defendant was the building of wooden forms for concrete bases for the mill machinery. The plaintiff was in nowise an employee of the defendant.

At the time in question the defendant was engaged in constructing one of these forms which was to enclose a concrete foundation shaped like the letter, 'T,' and which was about eight feet wide and twelve feet high. The four sides of the form had been constructed elsewhere and brought to the erection site and were then in the process of being set up. The four sides were held together by means of large boards called 'whalers,' extending around the outside of the form. These whalers were of various sizes, depending upon the width of the panels for which they were used to reinforce and were about two to three feet apart. Through the form were threaded steel rods which were bolted at each end and which held the form together. The top of the form could be reached from the ground by means of planks extending from the surface of the earth across to the top of the form.

At the time of the accident, the whalers were being put in place, and employees of the defendant were in an excavation threading these steel rods through the form and whalers and screwing up the nuts on the rods.

The plaintiff, in the performance of his duties as a surveyor's rodman, went upon one of these foundation forms which was about twelve feet in height. While there he dropped his pencil and endeavored to retrieve it by going down the outside of the form, using the whaling strips as steps, and in doing so fell to the surface below and as a result thereof suffered severe injuries.

This action was instituted in the Court of Common Pleas of Lorain County against the defendant for damages for the injuries sustained. The negligent acts of the defendant as alleged in the amended petition are as follows:

1. Failure to provide plaintiff with a safe place to work contrary to the provisions of Section 871-16, General Code.

2. Failure to nail, bolt or otherwise securely fasten said whaler contrary to the provisions of Sections 164 and 165 of Bulletin No. 202, issued by the Department of Industrial Relations of the state of Ohio, establishing specific safety requirements relating to building and construction work.

3. Permitting said whaler to remain unfastened and unsecured in such a manner as to constitute a trap.

The defendant, by amended answer, denies negligence upon its part and pleads contributory negligence of the plaintiff and also his assumption of the risk.

The trial resulted in a verdict for the defendant, upon which, following the overruling of a motion for a new trial, judgment was entered.

Upon appeal to the Court of Appeals the judgment was affirmed.

The cause is in this court following the allowance of a motion to certify the record.

Levin & Levin, Lorain, for appellant.

Myers, Horan & Ashenbach, Elyria, Baker, Hostetler & Patterson, William F. Marsteller, all of Cleveland, and Sam S. Fitzsimmons, Lakewood, for appellee.

MATTHIAS, Judge.

The plaintiff has assigned numerous errors which he claims were prejudicial to him in the trial of this cause. The admission of certain evidence and instructions to the jury on assumption of risk and contributory negligence are the principal grounds of complaint. The contention is made that the plaintiff was a so-called 'frequenter,' that the doctrine of assumption of risk cannot be applied in his action against an independent contractor, and that in such relationship the defense of contributory negligence is unavailable. Counsel go further and urge the application of the comparative-negligence rule.

The term, 'frequenter,' is defined in Section 871-13, General Code, as including 'every person, other than an employe, who may go in or be in a place of employment under circumstances which render him other than a trespasser.'

The plaintiff requested the court to instruct the jury, before argument, on the law relating to frequenters and submitted 17 special charges all which the court gave over the objection of the defendant. In addition to these special charges, the court in its general charge referred to the instructions before argument and charged the jury by reading to it Section 871-16, General Code. That section provides as follows:

'No employer shall require, permit or suffer any employe to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide and use safety devices and safeguards, or fail to obey and follow orders or to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health, safety and welfare of such employes or frequenters; and no such employer or other person shall hereafter construct or occupy or maintain any place of employment that is not safe.'

There was no error prejudicial to the plaintiff in the submission by the trial court of the question of the relationship between the plaintiff and the defendant company.

It is urged, however, that the doctrine of assumption of risk cannot apply in this action by reason of this relationship . That contention is based on the following statement found in 26 Ohio Jurisprudence, 597, Section 572:

'The doctrine of assumption of risk does not apply as between an injured employee and a third person whose negligence proximately contributed to the injury, or between the employee of an independent contractor and the principal contractor.'

This statement is incorrect as is disclosed by later annotations in Ohio Jurisprudence. The case of Davis v. Charles Shutrump & Sons Co., 140 Ohio St. 89, 42 N.E.2d 663, 665, has setted this question in Ohio. Paragraph four of the syllabus of that case provides as follows:

'In an action by a contractor's servant against a contractee for injuries resulting to such servant because of the condition of the premises of the contractee, it is a valid defense that the conditions by which the injury in question was occasioned were known to and appreciated by the plaintiff and that as a consequence he is chargeable with an implied assumption of the risks arising from those conditions.'

See, also, Masters v. New York Central R. Co., 147 Ohio St. 293, 70 N.E.2d 898.

By provisions of Section 6245, General Code, the defense of assumption of risk is not applicable in a suit by an employee against his employer, but there is no statutory provision taking away that defense on behalf of a defendant against one who is not his employee. The defenses of contributory negligence and assumption of risk were taken away from employers who were in turn given the benefit of the Workmen's Compensation Act. Here it is sought to take from this defendant the defense of assumption of risk to whom nothing is given in return.

The doctrine of assumption of risk is well established in this state by many decisions of this court. Numerous cases have held that, under ordinary circumstances, a person fully aware of a danger assumes the risk incident to such danger. See 29 Ohio Jurisprudence, 536, Section 91, where numerous cases are cited including Cincinnati, Lawrenceburg & Aurora Electric St. R. Co. v. Lohe, Adm'r, 68 Ohio St. 101, 67 N.E. 161, 67 L.R.A. 637; Harmony Realty Co. v. Underwood, 118 Ohio St. 576, 161 N.E. 924.

There is evidence in the record that the plaintiff was injured as a result of his descending the outside of a wooden form while it was still in the process of construction, which fact was known to him, and that other means was provided for his descent from the top of the form, which might readily have been used by him.

The general rule applicable has been well stated to be that when there are two ways of accomplishing...