Wellman v. East Ohio Gas Co.

• Decision Date: 01 July 1953
• Docket Number: No. 33361,33361
• Citation: 113 N.E.2d 629,51 O.O. 27,160 Ohio St. 103
• Parties: , 51 O.O. 27 WELLMAN v. EAST OHIO GAS CO.
• Court: Ohio Supreme Court

Page 103

160 Ohio St. 103

113 N.E.2d 629, 51 O.O. 27

WELLMAN v. EAST OHIO GAS CO.

No. 33361.

Supreme Court of Ohio.

July 1, 1953.

Syllabus by the Court.

1. 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 employees 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.

2. One who engages an independent contractor to do work for him ordinarily owes no duty of protection to the employees of such contractor, in connection with the execution of the work, who proceeds therewith knowing and appreciating that there is a condition of danger surrounding its performance.

3. To establish 'actionable negligence' three essential elements must be shown, namely, a duty or obligation on the part of the person charged with such negligence to protect another from injury, a failure to discharge that duty, and an injury to such other proximately resulting from that failure.

Ivan Wellman brought an action in the Court of Common Pleas of Mahoning County against The East Ohio Gas Company to recover damages for a broken leg he claims to have suffered by reason of defendant's negligence. He obtained a verdict and judgment in the trial court and that judgment was affirmed on appeal by the Court of Appeals.

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.

Manchester, Bennett, Powers & Ullman and John H. Ranz, Youngstown, for appellant.

W. L. Countryman and Steven Chuey, Youngstown, for appellee.

ZIMMERMAN, Judge.

The salient facts are as follows:

Plaintiff was employed as a welder's helper by the Fithian Contracting Company, an independent contractor, which, under a written contract with the defendant, was laying a six-inch gas line for it along Belle Vista avenue, running in a northerly and southerly direction in the city of Youngstown. Defendant had its inspectors 'on the job' to see that Fithian performed its work according to specifications.

A twelve-inch high-pressure gas main belonging to defendant extended east and west along Mahoning avenue. On October 19, 1950, the employees of Fithian, including plaintiff, attached by a nipple and saddle a section of six-inch pipe to the side of a portion of the twelve-inch high-pressure main, and thereafter employees of defendant, eight assisted by Fifthian employees or with such employees in close proximity, installed a gate valve in the six-inch pipe and drilled an opening into the twelve-inch main through the six-inch pipe, thereby releasing gas into the six-inch pipe as far as the closed gate valve. This six-inch section of pipe, lying in a trench, was extended south into Belle Vista avenue by the laying of additional pipe, and the open end of the same was closed by employees of Fithian through the application of a rubber gasketed metal cap secured to the pipe by bolts passed through flanges. To further secure the cap and prevent the escape of gas which might seep through the gate valve, the cap was strapped to the pipe by steel rods, the ends of which were welded to the pipe. As a Fithian employee, plaintiff assisted in welding the nipple and saddle on the twelve-inch main and in welding the steel rods over the end of the cap.

On October 20, 1950, a pipe fitter, who was a Fithian employee, engaged himself, under orders from his foreman, also a Fithian employee and also plaintiff's foreman, in removing the cap from the end of the six-inch pipe. During such process, the cap blew off, due to the pressure of gas which had seeped through the gate valve, and struck plaintiff on the legs, causing the fracture of one of them.

There was testimony strongly indicating that the pipe fitter proceeded improperly in attempting to remove the cap in that he cut the iron rods strapping the cap before loosening the bolts to permit the escape of any gas which might have accumulated behind the cap. At the time of his injury, plaintiff was standing in the trench a short distance back of the pipe fitter and talking to other Fithian employees.

During the trial of this action plaintiff testified fully and intelligently as to the entire operation of attaching the six-inch pipe to the twelve-inch main, the drilling of the opening into the twelve-inch main and the placing of the cap over the open end of the six-inch pipe, but insisted he had had no previous experience with high-pressure gas mains and did not know and was not informed by anyone that gas had passed into the six-inch pipe from the twelve-inch main. However, it clearly appears from the bill of exceptions that plaintiff's foreman and the welder who was plaintiff's immediate superior, both Fithian employees, were fully cognizant of the entire situation and the reasons for bolting and strapping the cap on the end of the six-inch pipe.

To sustain his right of recovery, plaintiff, as did the lower courts, relies heavily on the case of Bosjnak v. Superior Sheet Steel Co., 145 Ohio St. 538, 62 N.E.2d 305, the first paragraph of the syllabus of which...