author: By KOVACHY, J: By SKEEL, PJ.:

text:
    HARRIS, Plaintiff-Appellee, v. PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24116.
    Decided December 31, 1957.
    A. H. Dudnik, M. I. Nurenberg, for plaintiff-appellee.
    Hornbeck, Ritter & Victory, for defendant-appellant.
   OPINION

By KOVACHY, J:

Henry J. Harris filed this action in the Court of Common Pleas of Cuyahoga County for injuries incurred while employed as a member of a wreck train crew of the Pennsylvania Railroad Company on tracks of the Nickel Plate Railroad. His action is based on the Federal Employers’ Liability Act, 45 U. S. C. A., Section 51-59, and amendments thereto. A jury rendered a general verdict in his favor for $25,000 on which judgment was entered. Motions by defendant for 1) an order vacating and setting aside the verdict of the jury and for an order for judgment notwithstanding the verdict of the jury, 2) judgment on findings of facts, and 3) new trial, were overruled by the trial court. Defendant appeals these rulings to this court on questions of law. The injuries are not in dispute.

Defendant’s assignment of error No. 1 is that: “The trial court erred by its failure to grant final judgment for the defendant by reason of the fact that the verdict of the jury was inconsistent with the finding of fact timely submitted by the defendant and answered by the jury.”

Pursuant to §2315.16 R. C., the jury returned findings on particular questions of fact as requested by the defendant. They found that the defendant was negligent “in that the tie of the track he was required to walk was elevated a substantial distance above the ground level and was covered with grease or oil, thereby affording an unstable footing.” This finding of fact was an exact adoption by the jury of specification No. 3 of the plaintiff’s petition.

To test the correctness or incorrectness of the ruling of the court on the motion here involved, we are required to consider the evidence in the record in the most favorable light to the plaintiff.

In seeking to have the court sustain his first assignment of error, the defendant contends that there was “absolutely no evidence concerning the presence of oil or grease on the cross-tie where plaintiff claims he was injured,” and that as a consequence, the verdict of the jury was inconsistent with their finding of fact and requires a reversal. We do not agree with this contention.

In Klever v. Reid Brothers Express, Inc., 151 Oh St 467, 86 N. E. 2d 608, the Supreme Court held:

“1. It is the duty of a court to harmonize, if possible, a special finding of a jury with its general verdict.”

Also in Elio v. Akron Transportation Co., 147 Oh St 363, 370, 71 N. E. 2d, 707, 711, the court said:

“Nicety in the use of terms is not required of the jury in answering interrogatories so long as the court is able to gather the intent of the jury from its answer.”

“* * * Such answer should be liberally construed with a view to ascertaining the jury’s reason for its verdict.” (Emphasis ours.)

In Lavender, Adm. v. Kurn, 327 U. S. 645, the United States Supreme Court held:

“4. Only when there is a complete absence of probative facts to support the conclusion reached does reversible error appear.” (Emphasis ours.)

Headnotes 3 and 4 in Beattie v. Elgin, Joliet and Eastern Ry. Co., 217 F. 2d 863, U. S. Court of Appeals, Seventh Circuit, read:

“Standard of care required of employer in furnishing employee safe place to work must be commensurate with dangers of the business and duty to provide safe place becomes more imperative as risk increases.

“Employer’s duty to use reasonable care to furnish employee with safe place to work is a continuing duty from which employer is not relieved by fact that employee’s work at place in question is fleeting or infrequent or fact that employee is sent to premises not belonging to or under control of employer.”

Also in Bailey, Admx v. Central Vermont Ry., Inc., 319 U. S. 350, the court held:

“In this suit under the Federal Employers Liability Act, brought in a state court against a carrier to recover damages for the death of an employee, the evidence was sufficient to go to the jury on the question whether, as alleged in the complaint, the defendant was negligent in failing to use reasonable care to furnish the employee a safe place to work.”

Again in Webb v. Illinois Central Railroad Co., 352 U. S. 512, it was held:

“a) The test of a jury case under the act is whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the employee’s injury.”

The guiding principles of law, in resolving this assignment of error, therefore, are: (1) a liberal construction of the findings of fact with the view of harmonizing them with the general verdict as pronounced by the Ohio Supreme Court; and (2) the slightest evidence of negligence on the part of a defendant in not using reasonable care to furnish employee with a safe place to work, even though employee’s work is fleeting and is on premises not belonging to or under control of employer, is sufficient to sustain a jury verdict in favor of a plaintiff under the Federal Employers’ Liability Act as interpreted by the Circuit Courts of Appeals and the Supreme Court of the United States.

By their findings of fact, the jury in this case, in effect, found that the defendant was negligent in failing to use reasonable care to provide the plaintiff a safe place to work in that he was required to work on a cross-tie that was elevated a substantial distance above the ground level while said tie was covered with grease or oil, affording unstable footing. We find substantial evidence in the record to support these conclusions.

The plaintiff was called to work in the night season to join his wreck train crew in arighting two derailed boxcars. Rain and sleet was falling. The boxcars were to be lifted back on the track by the use of a derrick car. The derrick car, when operating, was supported by four outriggers, two on each end. These out-riggers were stabilized by blocks of wood under them. One boxcar had been arighted, making it necessary to transfer the derrick and out-rigger blocks in position to aright the second boxcar. It was during this operation that the plaintiff was injured. He was required to remove the bottom-most block under one of the out-riggers. The block was one foot wide, one-half foot thick, four feet long and weighed close to one hundred pounds and had sunk into the mud to a depth of 4 or 5 inches. It lay parallel to the tracks, with the end required to be extracted from the mud, immediately adjacent to and contiguous with a cross-tie which protruded some five inches above the ground. The tie, according to the plaintiff’s testimony, was covered with mud with grease or oil under the mud. Plaintiff’s foreman walked by and upon plaintiff’s asking for help to extract the block, was told: “You are a big, strong man — we are busy. Hurry up.” Two coworkers, testifying for the defendant, said that it was difficult for one man to cope with such a situation alone. Plaintiff testified that the only way he was able to extricate the block under the circumstances- was to put one foot on the tie and another on the ground and to tug away, saying, “It was so close to the cross-tie you couldn’t hardly get no position to stand to pull it out of the mud.” He also testified that as “it jumped out of the mud” and he was about to place it on his shoulder, his right foot, which was on the tie, slipped and caused him to injure his back. The record further discloses that no one experienced any slipping that day but the plaintiff and that a section foreman inspected the tracks the following day in the area where the wreck crew had worked and saw grease “where we keep the switches lubricated.”

It seems to us that from these facts the jury with reason could determine that the defendant was negligent in requiring plaintiff to proceed alone in extricating the block under circumstances which required that he place one foot on a tie covered with mud and grease or oil and the other foot on the ground five inches lower. It is common knowledge that the foot on the lower level, under these circumstances, would carry the greater weight and that the foot on the tie, by reason of the resulting imbalance, would be likely to slip on the mud and grease or oil. Yet the foreman who saw, or in the exercise of reasonable care, should have seen this hazardous situation, permitted the plaintiff to continue without help or even a warning as to the danger facing him.

Defendant maintains that since the plaintiff did not categorically testify that he saw grease or oil on the cross-tie that “there is absolutely no evidence concerning the evidence of oil or grease on the cross-tie.” In making this statement, defendant closes its eyes to plaintiff’s statement, reiterated several times, that he knew there was grease or oil under the mud because his right shoe, the one that was planted on the tie, had a grease upon it while his left shoe, the one planted on the ground, had only mud upon it. The jury may well have reasoned that grease would have been found on both shoes had grease been present on the ground other than on the tie and that since the plaintiff saw it only on the shoe that had been on the tie, the jury could have inferred that it came from the tie. This testimony, considered with the obvious fact that a foot slipping on a surface gives such a person some feeling as to whether the slipping is due to mud or grease or oil, together with the answers of the plaintiff (no less than ten times) that there was “grease on the tie” would justify a jury finding that there was grease or oil on the tie. After all, the jury saw and heard the witness and was in a position to determine the credit and the weight to be given his testimony. Moreover, they had the right to draw fair and reasonable inferences from the testimony in the light of all surrounding circumstances. This was their function under the law, and, to hold, in view of this state of the record, that there was insufficient evidence to support the findings of fact would, in our opinion, be tantamount to denying this plaintiff the right to have his complaint passed upon by a jury, a clear right accorded him under the Federal Employers’ Liability Act.

In Bailey v. Central Vermont Ry., Inc. supra., the court said at page 354:

“* * * To deprive these (railroad) workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.”

In Wilkerson v. McCarthy, 336 U. S. 53, 55, the court said:

“This court has previously held in many cases that where jury trials are required, courts must submit the issues of negligence to a jury if evidence might justify a finding either way on these issues.” (Emphasis ours.)

and Lavender, Adm. v. Kurn, supra, the court held:

“2. There being a reasonable basis in the record for an inference by the jury that the injury resulted from the defendant’s negligence, it is not within the province of the appellate court to weigh the conflicting evidence, judge the credibility of witnesses, and arrive at a conclusion opposite from that reached by the jury.

“3. In suits under the Federal Employers’ Liability Act, the appellate court’s function is exhausted when the evidentiary basis for the jury’s verdict becomes apparent, it being immaterial that the court might draw a contrary inference or consider another conclusion more reasonable.

“4. Only when there is a complete absence of probative facts to support the conclusion reached by the jury does reversible error appear. (Emphasis ours.)

And at page 653, the court said:

“It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference.”

See Arnold v. Panhandle and Santa Fe Ry. Co. 353 U. S. 360; McBride v. Toledo Terminal Railroad Co., 354 U. S. 517; Ringhiser v. Chesapeake & Ohio Ry. Co., June 10, 1957, 354 U. S. 901.

It seems to us, moreover, that, under the circumstances disclosed in the record, the defendant should have anticipated the plaintiff injuring himself when he was required to stand with one foot on a tie raised five inches about the ground and covered with mud and grease or oil and the other foot on the ground while tugging at a heavy timber imbedded in the ground. Defendant’s foreman should have either ordered assistance for him, or provided that the mud and grease or oil be removed or its slickness reduced in some way. In any event, we conclude that fair-minded men and women could reasonably conclude from such evidence that the employer failed to exercise reasonable care to see that its employee had a safe place in which to work and that as a consequence it was negligent.

In Rogers v. Missouri Pacific Rd. Co., 352 U. S. 500, 503, the court said:

“These were probative facts from which the jury could find that respondent was or should have been aware of conditions which created a likelihood that petitioner, in performing the duties required of him, did sustain just such an injury as he did.”

We believe, therefore, that the findings of fact made by the jury were supported by the record and were consistent with the general verdict rendered by them.

Defendant’s assignment of error No. 2 that “The trial court erred in overruling defendant’s motion to strike certain specifications of negligence from plaintiff’s petition” and assignment of error No. 3, that “The trial court abused his discretion in overruling defendant’s motion for a new trial on the ground that the verdict of the jury and the judgment of the court were contrary to law: are not well taken and are overruled.

Consistent with the foregoing, the Court of Common Pleas was not in error in overruling a motion for an order setting aside the verdict of the jury and for judgment notwithstanding the verdict of the jury, a motion for judgment on findings of fact, and a motion for new trial. Hence the judgment of said court is affirmed.

HURD, J, concurs.

SKEEL, J, dissents.

DISSENTING OPINION

By SKEEL, PJ.:

I am unable to agree with the conclusions reached by the majority of this court. The action is one for personal injuries, it being the claim of the plaintiff that the defendant negligently caused his injuries within the purview of the Federal Employers’ Liability Act.

A restatement of the facts, at least in part, seems desirable to clearly present the issues. On March 29, 1953, the plaintiff was employed by the defendant upon a special assignment (aside from his usual work) as a member of a wreck train crew. He had reported for duty the evening before the accident at 7:15 P. M. to assist in retracking two freight cars that had been derailed on the tracks of the Nickel Plate Railroad at the Northern Ohio Food Terminal located at East Ninth and Broadway in Cleveland, Ohio.

At the time of the injury to plaintiff, which occurred at about 12:45 A. M. of the next day, one car had been retracked and work had been started on the second car. The plaintiff, with others, was blocking the out-rigging of the derrick car. The work consisted of carrying wooden blocks said to be 6" x 12" x 48", weighing 50 to 60 lbs., to be placed under the out-riggers. This was done to stabilize the derrick car when the derrick was in use. The block which plaintiff was attempting to pick up had been forced into the mud by the pressure of the out-rigger, stabilizing the derrick while retracking the first car. The evidence discloses that it was a wet, sleety night and the activity of the workers had created a muddy condition at the place of the work. The blocks to support the out-rigger were placed between the tracks (sometimes referred to as the devil strip), the bottom layer (three blocks in number) being laid lengthwise beginning at the end of the ties of the track on which the derrick car was spotted. The plaintiff’s testimony of how the injury took place in his case in chief was as follows:

“A. I couldn’t get no grip on it because it was stuck in the mud. I started to tug. I asked the boss for some help. He said, ‘You are a big strong man.’ He said, ‘We are busy. Hurry up.’ So I start tugging the block, tug it and pull it, and so all at once it jump out of the mud and I slipped on the cross-tie that I was standing next to, a tie — I couldn’t get no good grip, I was so close to it. So when I slipped on the cross-tie, that is when I got that catch in my back.

<< * lie *

“Q. Now, were you able to stand on the ground while you were tugging at this thing?

“A. No, I had one feet on the cross-ties. There was no room, I can’t stand on the ground, no room on the cross-tie. And one feet on the cross-tie and one next to the side of the tie, on the other side, my left feet.

“Q. And was the cross-tie even with the ground?

“A. The cross-tie?

“Q. Yes.

“A. Well, that was about five inches off the ground.

“Q. You mean the top of the cross-tie?

“A. Yes.

“Q. And was that block wet or dry, or what?

“A. It was wet and slimy and sort of muddy-like.

“Q. Did you feel any immediate pain in your back?

“A. Yes, I did.

“Q. Were you able to finally pick the block up?

“A. Yes, I finally pick the block up and took it over to the next guy, Joe Ducato, and he took it off my shoulder.”

The allegations of negligence in plaintiff’s petition are as follows:

(1) In that it refused his request for help and peremptorily ordered the plaintiff to pick up and carry said wood block without help.

(2) In that it hurried the plaintiff in said work.

(3) In that the tie of the track he was required to walk was elevated a substantial distance above the ground level and was covered with grease or oil, thereby affording unstable footing.

(4) In that the defendant failed to exercise ordinary care to provide plaintiff with a reasonably safe place to perform his work.

The defendant requested a special finding of fact which was answered by the jury as follows:

“1. Was the defendant negligent?

“Answer: Yes.

“2. If your answer to Number 1 is ‘yes,’ state of what that negligence consisted.

(Answer) “In that the tie of the track he was required to walk was elevated a substantial distance above the ground level and was covered with grease or oil, thereby affording unstable footing.”

The errors claimed by the defendant are:

“1. The trial court erred by its failure to grant final judgment for the defendant by reason of the fact that the verdict of the jury was inconsistent with the finding of fact timely submitted by the defendant and answered by the jury.

“2. The trial court erred in overruling defendant’s motion to strike certain specifications of negligence from plaintiff’s petition.

“3. The trial court abused his discretion in overruling defendant’s motion for a new trial on the ground that the verdict of the jury and the judgment of the court were contrary to law.”

Section I of the Federal Employers’ Liability Act provides:

“Every common carrier by railroad, while engaged in commerce * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier or by reason of any defect or insufficiency, due to its negligence in its cars, engines, appliances, machinery, track, roadbed works, boats, wharves, or other equipment. 45 U. S. C. Sec. 51.”

The term negligence is not defined in the Act so that its meaning must be governed by common law principles as established and applied in the federal courts. The decisions of state courts, defining the meaning of negligence, can be of no help. The question is clearly and completely one to be determined by federal law. The Act, however, is one which bases liability on negligence. It is not a Workmen’s Compensation Act where the right to participate in an insurance fund is dependent only on injuries sustained while acting in the course of the employee’s employment and recovery is limited to compensation and not damages. The primary function of the Act was to require carriers by rail to exercise ordinary care in relation to the unusual hazards of railroading and to eliminate the common law defenses of assumption of risk, contributory negligence and the fellow servant doctrine. The greater degree of hazard associated with the industry requires greater vigilance by the employer to protect the safety of employees. The question here is — Was that which should or could have been done, in the practical operation of the system, in the exercise of proper care, omitted, which omission m part was a contributing or proximate cause of the injury sustained by the petitioner? A clear statement of the basis of liability, under the Act is found in Illinois Central Railroad Co. v. Skaggs, 240 U. S. 66, 36 S. Ct. 249, 60 L. ed. 528, where it was held:

“* * * before a recovery can be had, it must be shown by either direct or circumstantial evidence that the railway company was negligent; or in other words, that it owed a care and failed to exercise it.”

See also Urie v. Thompson, 337 U. S. 163, 69 S. Ct. 1018, 93 L. ed. 1282.

The authorities cited by the contending parties attempt to exemplify the meaning of the word negligence within the rule as thus stated. In each case the controversy has to do with determining whether the facts, when considered in their most favorable light to establish the responsibility of the carrier, are sufficient to permit the submission of the case to the jury on the question of negligence.

In the case of Blair v. Baltimore & Ohio Railroad Co., 323 U. S. 600, 63 S. Ct. 545, 89 L. ed. 490, the basis of the alleged liability of the respondent was its failure to furnish tools reasonably suited to the work at hand as well as a safe place to work and to furnish competent help. It was also charged that the railroad’s employees who were assigned to assist in the work at hand were incompetent under the circumstances. The petitioner, with others, was attempting to move three, 30', 10" tubes covered with grease and weighing 1,000 lbs each, from a railroad car. Petitioner had reported to his superior that the tubes were too heavy for him to move. After his suggestion that the car should be consigned directly to the customer for want of proper equipment to unload and reload the pipes was rejected by petitioner’s superior, he was told to get help and proceed with the work, which he did. In attempting to load the second pipe after the first one had been successfully moved, the pipe slipped, causing the truck to kick back, injuring the petitioner. Under the facts of this case, it is said in the headnote of Vol. 65, Supreme Court, page 565, that:

“Evidence that plaintiff, a freight handler, was assisted by a section man, aged 60, and a car inspector, 68, in moving through a warehouse, from freight car to motor truck, a greased 1,000-pound 10-inch steel tube. about 30 feet long, by using a 5-foot nose truck about 2 feet high, and that the tube slipped and plaintiff’s helpers released their holds, and the truck kicked back against plaintiff, was sufficient to take the railroad’s negligence to the jury.

“The negligence of a railroad under the Federal Employers’ Liability Act may be determined by viewing its conduct as a whole, especially where the elements indicating negligence are closely interwoven, and where each imparts character to the others.”

The case of Wilkerson v. McCarthy, 336 U. S. 53, 69 S. Ct. 413, 93 L. ed. 497, wherein a switchman was injured while in the yard of the respondents in the furtherance of his duties, it was alleged by petitioner that in the course of his duties, he was required to walk over a wheel pit on a narrow boardway and that due to respondent’s negligence, he fell into the pit, thereby suffering injuries. The pit which was 4' 2%" wide and .11' deep and about 40' long, was situated underneath at least three parallel tracks. When not in use, the pit was covered with heavy boards which were used as walkways by employees. When in use these boards were removed, leaving one permanent board 22" wide which was then used as a walkway by employees until about May 1, 1945 when, to block its. use when the pit was open, “safety chains” were erected enclosing 16 y2' of the west end of the pit. On the day of the accident, the pit wa,s open, the chains were up and a tourist car spotted over the pit so that for the petitioner to use the permanent plank, he had to “squeeze” through a 9%" opening between the car and the post holding the safety chain. There was another course the petitioner could have used in complete safety. It was claimed that the permanent plank had some oil or grease on it as a result of the character of the work carried on in the pit. The petitioner, after squeezing through the 9Vz" opening, and while walking on the 22" plank, slipped and fell into the pit. There was no rule prohibiting employes, including pit workers, from using the permanent board when the pit was open. The Supreme Court of Utah held the erection of the chains was evidence of orders not to use the permanent board when the chains were up, thereby holding that no negligence of the respondent was shown and, therefore, entered final judgment in respondent’s favor. In reversing the State Supreme Court. The United States Supreme Court said, beginning on page 61 of the opinion:

“There was, as the state court pointed out, evidence to show that petitioner could have taken a slightly longer route and walked around the pit, thus avoiding the use of the board. This fact, however, under the terms of the Federal Employers’ Liability Act, would not completely immunize the respondents from liability if the injury was ‘in part’ the result of respondents’ negligence. For while petitioner’s failure to use a safer method of crossing might be found by the jury to be contributory negligence, the Act provides that ‘contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee * * *.

“Much of respondents’ argument here is devoted to the proposition that the Federal Act does not make the railroad an absolute insurer against personal injury damages suffered by its employees. That proposition is correct, since the Act imposes liability only for negligent injuries. Cf. Coray v. Southern Pac. Co., 335 U. S. 520. But the issue of negligence is one for juries to determine according to their finding of whether an employer’s conduct measures up to what a reasonable and prudent person would have done under the same circumstances. And a jury should hold a master ‘liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in the circumstances,’ bearing in mind that ‘the standard of care must be commensurate to the dangers of the business.’ Tiller v. Atlantic C. L. R. Co., 318 U. S. 54, 67.

“There are some who think that recent decisions of this Court which have required submission of negligence questions to a jury make, ‘for all practical purposes, a railroad an insurer of its employees.’ See individual opinion of Judge Major, Griswold v. Gardner, 155 F. 2d 333, 334. But see Judge Kerner’s dissent from this view at p. 337 and Judge Lindley’s dissenting opinion, pp. 337-338. This assumption, that railroads are made insurers where the issue of negligence is left to the jury, is inadmissible * *

Mr. Justice Frankfurter, in his concurring opinion, said on page 65:

“* * * If there were a bright line dividing negligence from non-negligence, there would be no problem. Only an incompetent or a wilful judge would take a case from the jury when the issue should be left to the jury. But since questions of negligence are questions of degree, often very nice differences of degree, judges of competence and conscience have in the past, and will in the future, disagree as to whether proof in a case is sufficient to demand submission to the jury. The fact that a third court thinks there was enough to leave the case to the jury does not indicate that the other two courts were unmindful of the jury’s function. The easy but timid way out for a trial judge is to leave all cases tried to a jury for jury determination, but in so doing he fails in his duty to take a case from the jury when the evidence would not warrant a verdict by it. A timid judge, like a biased judge, is intrinsically a lawless judge.”

The case of Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 740, 90 L. ed. 916, is cited by both parties to this action. In this case the decedent, L. E. Haney, employed by the respondent as a switch-tender, was killed on December 21, 1939, at the point of his employment where the tracks of- The St. Louis, San Francisco Ry. and the Illinois Central cross. A judgment for the petitioner had been reversed by the Supreme Court of Missouri, holding there was no substantial evidence of negligence on the part of the railroad company to submit to the jury. The facts as contended by the petitioner are set forth in part on page 648 of the opinion above cited. The respondent’s theory was that petitioner was murdered. The court held:

“1. In this action under the Federal Employers’ Liability Act, the evidence of the defendants’ negligence (detailed in the opinion) was sufficient to justify submission of the case to the jury; and the judgment of the appellate court setting aside the verdict for the plaintiff can not be sustained.

“2. There being a reasonable basis in the record for an inference by the jury that the injury resulted from the defendants’ negligence, it is not within the province of the appellate court to weigh the conflicting evidence, judge the credibility of witnesses, and arrive at a conclusion opposite from that reached by the jury.

“3. In suits under the Federal Employers’ Liability Act, the appellate court’s function is exhausted when the evidentiary basis for the jury’s verdict becomes apparent, it being immaterial that the court might draw a contrary inference or consider another conclusion more reasonable.”

In the case of Jesionowski v. Boston & Main Railroad Co., 329 U. S. 452, 67 S. Ct. 401, 91 L. ed 416, a switchman was killed when a train was derailed while backing onto a siding. The derailment was said by the respondent to have been caused by the negligence of the deceased in throwing the switch. However, there were other factors involving splintered planks. The court, in applying the doctrine of res ipso loquitur, held:

“1. The doctrine of res ipsa loquitur was applicable and the judgment against the railroad is sustained.

“2. In this case, the jury’s right to draw inferences from evidence and the sufficiency of the evidence to support a verdict are federal questions.

“3. The facts support the jury’s findings both that the deceased’s conduct did not cause the accident and that the railroad’s did.”

In the case of Jackson v. Illinois Northern Railway, 224 F. 2d 76, a railroad hostler helper experienced a hernia in picking up a large frozen mass of sand. He had been furnished the proper tools to do the work safely. The headnote of the case reads:

“Where railroad hostler helper, who was required to shovel sand in sandhouse, and who was furnished with pick, chose to pick up with his hands a large frozen mass of sand instead of breaking it into smaller pieces, so that he could shovel it, and the mass broke, and he strained himself and suffered an inguinal hernia, railroad was not liable under the Federal Employers’ Liability Act for his injuries.”

In the case of Webb v. Illinois Central Railroad Co., 352 U. S. 512, 77 S. Ct. 451 (Feb. 25, 1957), 1 L. ed. 2d 503, the petitioner, a brakeman, sustained an injury when he slipped on a clinker, about the size of his fist, embedded in the roadbed of his employer. A judgment for the petitioner was reversed by the Court of Appeals of the Seventh Circuit (228 F. 2d 257) on the ground that the trial court should have directed a verdict for the respondent, there being no evidence of negligence. The Supreme Court of the United States reversed the judgment of the Circuit Court of Appeals, holding there was ample evidence to justify, with reason, a jury finding of negligence. The parties conceded that a clinker in a roadbed created a hazardous condition (insecure footing). The only question presented was whether defendant was negligent in creating or permitting such hazard to exist. There was evidence that a section foreman had failed to screen for large clinkers which was a usual practice. Paragraphs 5 and 6 of the headnotes of the Supreme Court Reporter, above cited, provide:

“5. In action under Federal Employers’ Liability Act for injuries sustained by brakeman when he stepped on clinker, embedded in employer’s roadbed, and fell, evidence would not reasonably support finding that clinker came from source other than ballast used in road repair operations; but even if there were other possible sources of clinker, directed verdict for employer would not be justified where evidence would reasonably support jury finding that employer had negligently caused clinker to be in ballast used in repair work and had failed to use proper care to discover and remove it.

“6. Under Federal Employers’ Liability Act, test of jury case is whether proofs justify with reason conclusion that employer’s negligence played any part, even the slightest, in producing injury or death for which damages are sought; and it does not matter that, from evidence, jury could also with reason, on grounds of probability, attribute result to other causes, including employee’s contributory negligence.”

The Supreme Court of the United States in the case of Rodgers v. Missouri Pacific Railroad Co., 352 U. S. 500, 77 S. Ct. 443, 1 L. ed. 2d, 493, (decided February 25, 1957) gave further consideration to the question of whether an action by a petitioner under the Federal Employers’ Liability Act should be submitted to a jury on the question of negligence. Here an employe was injured by falling over the top of a retaining

wall of a culvert. The petitioner was engaged as a laborer while working on a right of way with others in burning weeds by the use of a crude torch. (The work had formerly been done by the use of a flame thrower operated from a car running on the tracks.) The petitioner had been instructed by his superior that while doing this work, he should stop weed-burning operations to inspect journals of passing trains for “hot boxes.” At the time of his injury, a train was passing by and while inspecting the journals of the trucks, a wind was created by the train-fanned flames from the burning weeds and as he stepped back to avoid the flames, he fell over the culvert. In paragraphs 2, 3, 4, 5 and 6 of the report above cited, the headnotes provide:

“2. In action under Federal Employers’ Liability Act for personal injuries sustained by section gang laborer, who had, in accordance with instructions, stopped his weed-burning operations to inspect journals of passing train for hot boxes, and slipped and fell while retreating from flames fanned by train, evidence would support jury finding that employer had, or should have, been aware of conditions which created likelihood that employee, in performing duties required of him, would suffer just such an injury as he did.

“3. Where employer was or should have been, aware of conditions which created likelihood that employee, in performing duties required of him, would suffer just such an injury as he did when he fell while retreating from flames of weeds which he was burning, it was irrelevant to employer’s liability, under Federal Employers’ Liability Act, whether immediate reason for employe’s slipping had been presence of gravel, negligently allowed by employer to remain on surface of culvert, or some unidentified cause.

“4. Not the court, but the jury, is tribunal to determine fact, when uncertainty as to fact arises from testimony.

“5. Where probative facts would support with reason verdict favorable to plaintiff, in action under Federal Employers’ Liability Act, decision as to whether plaintiff’s conduct had been sole cause of his mishap was exclusively for jury to make.

“6. Under Federal Employers’ Liability Act, test of jury case is whether proofs justify with reason conclusion that employer negligence played any part, even the slightest, in producing injury or death for which damages are sought, and it does not matter that, from the evidence, jury may also with reason, on grounds of probability attribute result to other causes, including employe’s contributory negligence, since statute expressly imposes liability upon employer to pay damages for injury or death due in whole or in part, to employer’s negligence.”

From the foregoing authorities, it must be clear that if there is any evidence whatever by which it could be said that the carrier was negligent, such question becomes one for the jury. The cases just cited certainly circumscribe the most extreme fact situations where the question of negligence has been held to be a jury question by federal courts. We must, therefore, examine the evidence here presented to determine whether there is the slightest evidence of the violation of a duty imposed by law on the respondent to protect the safety of the petitioner. In considering this question, the findings of fact of the jury confine the inquiry to: (1) Does maintaing the “ends of the ties of the track * * * a substantial distance above the ground level” (in this case by petitioner’s evidence about 5") — a condition which a railroad carrier must avoid for the safety of those who work along such right of way; and (2) Is oil or grease covered with mud on a tie along a railroad right of way a condition which a carrier must provide against, even though the track is not that of such carrier and the operation or work in progress is that of a wrecking crew where the situs of their work is fixed by the place where the disaster happens. The declaration by the majority of this court that the failure to grant assistance to the petitioner upon request can now be considered as an act of negligence supporting the verdict cannot be sustained. This contention cannot be so because of the jury’s findings as to respondent’s negligence, eliminating that claim from further consideration.

The first of these questions must be answered in the negative. It is a matter of common knowledge that the ends of the ties of a railroad track usually protrude above the ballast along the side of the track, and, therefore, the conclusion of the jury that to permit such condition to exist constituted negligence has no merit whatsoever. There is not a word of evidence that the ties here in question were any different from those generally found in all railroad construction. It is likewise true that this respondent, who did not own the roadbed where plaintiff was required to work under emergency conditions, could not be presumed to have knowledge of dangers, if any, hidden by weather conditions. It is also true, and the plaintiff’s evidence supports the fact, that the weather was inclement, — the ground was covered with sleet and an extremely muddy condition was created by the work of retracking the boxcars. However, there is not the slightest suggestion that, if there were grease or oil on a tie, under these circumstances, that in the exercise of the duty of a carrier to protect the safety of its employees, the presence of the oil or grease could, with reasonable diligence, have been discovered.

The plaintiff, in attempting to fix the respondent’s liability, contends that because he found grease and mud on his shoe after he got back to the sitting car, that he must have gotten such grease from the place where his foot is said to have slipped when lifting the out-rigger block. Such conclusion is based on speculation and not factual proof.

For the foregoing reasons, it should be concluded that there is no evidence that would justify a submission to a jury the question of negligence founded upon the rules for which the foregoing authorities stand. The judgment should, therefore, be reversed and final judgment entered for tihe appellant.


source: Caselaw Access Project

author: By GILLEN, J.

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. RHOADS, Defendant-Appellant.
    Ohio Appeals, Fourth District, Highland County.
    No. 132.
    Decided July 22, 1955.
    Richard L. Davis, Pros. Atty., Hillsboro, for plaintiff-appellee.
    Forrest F. Berry, James D. Hapner, Hillsboro, for defendant-appellant.
   OPINION

By GILLEN, J.

Defendant, William B. Rhoads, was jointly indicted with Charles W. Milburn and Charles W. Smith on three counts. The first count of the indictment charges the three defendants with unlawfully, maliciously and forcibly breaking and entering the dwelling house of Herbert N. Smith with intent to steal, take and carry away personal property in violation of the provisions of §2907.15 R. C. The second count of the indictment charges the defendants with stealing certain personal property therein described in violation of the provisions of §2907.20 R. C. The third count charges the defendants with arson in violation of the provisions of §2907.02 R. C. Both Charles Smith and Milburn are nephews of defendant, Rhoads. Charles Smith, an exconvict, entered a plea of guilty to the first count of the indictment and was sentenced to the Ohio Penitentiary. Milburn was sentenced to the Mansfield Reformatory on his plea of guilty to the first count of the indictment. Rhoads pleaded not guilty and was tried and convicted on the charge of breaking and entering an inhabited dwelling with intent to steal.

Most of the evidence adduced at the trial is not in dispute. The three men started out early Saturday evening, May 22, 1954, on a beer-drinking spree which continued throughout the night. About 10 o’clock Sunday morning, May 23, they parked their car on the secondary road leading to the home of Herbert Smith approximately one-half mile away. Witness Andrew Robinson testified that he stopped his car near the place where Rhoads and his companions were parked. Rhoads got out of his car and walked across the highway to converse with Robinson concerning their past experiences. The conversation lasted about ten minutes. As Robinson drove away he passed Herbert Smith who had just left home. Herbert Smith testified that he left his home at ten minutes until ten o’clock to go to church and that he returned at 11:15. Upon his return, he discovered that his home had been forcibly entered, all of the rooms ransacked and three or four fires burning in different parts of the house. After extinguishing the fires he discovered that numerous articles had been stolen, including a rifle and a chain saw. It is the claim of Rhoads that he returned to his automobile after his conversation with Robinson and that he fell aslep. That when he awakened his car was parked near the Smith residence and his two companions were missing. He entered the Smith home in search of his companions, where he found Charles Smith downstairs and Milburn upstairs. He claims that he told Smith they had better get the hell out of there and that he went upstairs and told Milburn that he was leaving. The three departed and went to the home of Charles Smith where they remained until evening. The rifle and chain saw were found at the home of Charles Smith. Rhoads claims to have no knowledge of the fact that the chain saw and rifle were hauled away from the Herbert Smith home in his automobile. In fact, it is his claim that, during the brief interval of time the crime was being perpetrated, he was asleep in his automobile and that he did not participate in the breaking and entering of Smith’s home. Both Milburn and Charles Smith were returned to Hillsboro to testify as witnesses for Rhoads. It is clearly apparent, from their testimony, that they were endeavoring to shield Rhoads, who was their uncle. Milburn, under cross examination, admitted signing a statement a few days following the commission of the crime in which he implicated Rhoads as a participant. A careful examination of the record can leave no doubt about the commission of the crime. It was wholly within the province of the jury to believe or disbelieve the claim of Rhoads that he was asleep during the time the crime was being perpetrated and that he did not participate therein. It is apparent from the verdict of guilty that the jury did not believe his story and certainly the evidence is sufficient to support that conclusion.

It is urged that defendant was deprived of a fair trial by reason of the alleged misconduct of the prosecuting attorney, Davis. The first and second assignments of error are directed to this proposition. During the examination of prospective jurors on voir dire Davis asked the following:

“Mr. Davis: And you feel if a man is guilty he should be fined irrespective of his personal position?

“Mr. Claibourne: Right.

“Mr. Davis: Mr. Schmidt, how do you feel?

“Mr. Schmidt: The same.

“Mr. Davis: And you feel that a man with a family should take into consideration the fact he is a man with a family if he commits a crime. If he commits a crime he should be answerable for it irrespective of his children?

“Mr. Schmidt: That is right.”

B. E. page 5.

No objection was made at the time by counsel for defendant A consideration of the entire voir dire examination does not disclose any prejudicial error in this line of questioning. Counsel for defendant was afforded ample opportunity to examine the jurors in regard to their qualifications. Throughout the trial it was made clear to the jury that the guilt of the defendant must be established beyond a reasonable doubt.

The other matter complained of in regard to the misconduct of the prosecuting attorney related to his inquiry about the use of a lie detector. It is apparent, from the record, that all three defendants had voluntarily submitted to a lie detector test a few days following the commission of the crime. The day before defendant was placed on trial his counsel filed a motion requesting that defendant be given a lie detector test based on questions approved by the court. It does not appear that this motion was ever ruled upon. During the voir dire examination the prosecuting attorney inquired as. follows:

“Mr. Davis: If this man was shown to have taken a lie detector test is there anyone who would have any prejudice or any feeling against, that is to begin with, against the operation of that machine or what it might show? In other words, is there anybody who at the outset feels that the lie detector is all wrong, they should never be used or that its results are entirely unreliable?”

Counsel for defendant objected in the following manner:

“Mr. Berry: Your honor, I respectfully, for the record, or for the consideration of your honor, enter an objection to this line of questioning regarding the lie detector due to the fact that defendant has made a motion for the lie detector test on questions prepared by the Court and I wonder, until the Court rules on what has been done and due to the fact this last application has been denied, if the Court could exclude questioning on that part until the Court rules as to whether they will admit such evidence?

“The Court: Of course, the jury is bound to follow the instructions of the Court and if there is any testimony regarding the lie detector test the Court will instruct the jury concerning that.

“Mr. Davis: Do I have the approval of the Court to question concerning them?

“The Court: I don’t think so at this time.”

B. E. pages 9, 10.

During the examination of witness Joseph Martina, a lie detector operator and laboratory technician for the state of Ohio, the prosecuting attorney inquired in regard to the test given defendant Rhoads. Objection was made to this line of questioning and, in the absence of the jury, the trial court heard the arguments of counsel on that issue. The court ruled as follows:

“The Court: I believe the waiver takes care of that. The Court will allow the conversation with Mr. Martina, but when it comes to introducing the findings produced by the impulses, that can’t go in, and I would rather the Prosecutor wouldn’t bring it up, just simply say now, the objection that part of it will be sustained.” (Sic — Ed.]

B. E. pages 82, 83.

The result of the test was not offered in evidence and the matter was not pursued further by the prosecuting attorney. Not only had defendant voluntarily submitted to the lie detector test at the London Prison Farm but one day prior to the commencement of his trial had requested the court to order another test based upon questions approved by the court. This motion was commented upon by counsel for defendant in the presence of the jury. Under such circumstances, reference by the prosecuting attorney to the lie detector test did not constitute misconduct. The ruling of the court in regard to this matter corrected the situation and the jury could not have been misled or prejudiced by the reference to the test.

We have carefully examined the entire charge of the court and find that the complaint made in regard thereto is without merit. The trial court correctly defined each element of the various offenses contained in the indictment. After considering each assignment of error we have reached the conclusion that defendant was given a fair trial and that no prejudicial error was committed. The judgment of the trial court will, therefore, be affirmed.

Judgment affirmed.

McCURDY, PJ, COLLIER, J, concur.


author: By SKEEL, PJ.:

text:
    ZINGALE, Plaintiff-Appellee, v. AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24230.
    Decided December 11, 1957.

      Paul Mancino, for plaintiff-appellee.
    Squire, Sanders & Dempsey, George I. Meisel, of Counsel, for defendant-appellant.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment entered for the plaintiff in the Municipal Court of Cleveland, the issues being tried to the court, trial by jury not having been demanded as provided by §1901.24 R. C., supplemented by rule of court. The action is one in contract.

The plaintiff is a plumbing contractor. Under the allegations of the petition, the plaintiff purchased from the defendant two policies of public liability insurance, insuring said plaintiff either as a plumbing contractor or sub-contractor in construction operations throughout Cuyahoga County with limits of $10,000 to $20,000 for personal injury and $10,000 to $25,000 for property damage. The first policy covered a period of one year, beginning May 22, 1950. The plaintiff contracted for a like policy of insurance for a period of one year beginning May 22, 1951.

The plaintiff alleges that in the year 1950, he entered into a contract and performed the work and furnished the materials and fixtures as a sub-contractor for the plumbing work in a house situated and being constructed at 3905 Faversham Road, University Heights. The plaintiff’s plumbing contract was with Joseph Costanzo as builder and owner. The work was fully completed in April of 1951. The contract specifically included the installation of a toilet which contained a fixture or part commonly known as a trip (flushing) lever. Thereafter, in May of 1952, the plaintiff (with others) was made a defendant in an action for damages for injuries sustained by one Jacqueline Bialosky (whose husband purchased the residence at 3905 Faversham Road, University Heights, after its completion) because of injuries she is alleged to have sustained when the trip lever broke while she was attempting to flush the toilet.

It is alleged that as a result of such lawsuit, plaintiff expended money totaling $622.33, by contributing to a settlement of the case and the court costs and the cost of depositions and attorney fees, which amount is claimed to be due this plaintiff under the obligations of the policies of insurance above described.

The defendant’s answer admits the allegations with regard to the policies of insurance as alleged in the petition but denies the expenditure of monies as alleged and further denies that it failed to carry out its contractual obligations under its policies of insurance.

The defendant also alleged that in the cause of action filed by Jacqueline Bialosky, she claimed to have been injured by a defectively constructed trip lever which broke as she was attempting to flush the toilet. Further, it is alleged that the injury was sustained January 4, 1952, and that the action was filed against the general contractor, this plaintiff as the sub-contractor doing the plumbing work and furnishing the plumbing fixtures and the McKee Plumbing Supply Company, from whom the plaintiff purchased the fixture, the defective condition of which is alleged to have caused her injury. The claims of negligence in her petition are that the plaintiff herein installed an imperfect brittle plumbing fixture known as a trip lever, which was inherently dangerous, in failing to install a proper and adequate trip lever and. to warn her of the dangerous condition of said lever or to inspect the same to determine its dangerous condition and in coating such lever with a polished material to concal its defective condition.

This defendant then alleges that the first policy of insurance was designated as a Manufacturers and Contractors Policy and was issued to the plaintiff for a period of one year, beginning May 22, 1950, and the second policy was issued May 22, 1951 for a like period, and that each contained the following specific provision:

“This policy applies only to accidents which occur during the policy period within the United States of America, Canada and Newfoundland.” It is also alleged that the defendant’s liability under the policies pleaded was limited to two of the subjects or divisions (five in number are contained in the policy form) as indicated by specific designation and that the area of each division for which coverage was contracted for is clearly defined in the policy.

The two divisions under which coverage was purchased were (1) Premises-Operations, and (3) Independent Contractors. The three divisions of the policy under which coverage was not purchased were (2) Elevators (4) Products and (5) Contractual. It is pleaded that under the “Definition of Hazards” the policy provides as follows:

“Division 1. Premises-Operations. The ownership, maintenance or use of the premises, and all operations during the policy period which are necessary or incidental thereto.

“Division 2. Elevators. The ownership, maintenance or use, for the purposes stated in the declarations, of any elevator therein designated.

“Division 3. Independent Contractors During the Policy Period. Operations performed by independent contractors and omissions or supervisory acts of the insured in connection with work performed for the named insured by independent contractors, except maintenance or ordinary alterations and repairs on premises owned or rented by the named insured.

“Division 4. Products. The handling or use of or the existence of any condition in goods or products manufactured, sold, handled or distributed by the named insured, if the accident occurs after the insured has relinquished possession thereof to others and away from premises owned, rented or controlled by the insured, except equipment or other property rented to or located for the use of others but not sold; and operations covered under divisions 1 and 3 of the Definition of Hazards, other than pick-up and delivery and the existence of tools, uninstalled equipment and abandoned or unused materials, if the accident occurs after such operations have been completed or abandoned at the place of occurrence thereof and away from such premises.

“Division 5. Contractual. The express undertakings of the named insured designated in the declarations.”

This policy also provided:

“This policy does not apply:

“(a) Under division 1 of the Definitions of Hazards, to:

n(l^ * * *

«(2) * * *

“(3) Operations, * * * if the accident occurs after such operations have been completed or abandoned at the place of occurrence thereof and away from premises owned, rented or controlled by the insured.

“(b) * * *

“(c) * * *

“ (d) Under divisions 1 and 3 of the Definition of Hazards, to liability with respect to which insurance is or can be offered under division 4 (products) of the Definition of Hazards; or to operations on or from other premises which are owned, rented or controlled by the insured.”

The defendant then denies any obligations to the plaintiff for claims made against him by Jacqualine Bialosky because of an accident occurring January 4, 1952 or claims in defending such action because by the provisions of the policy that expired May 22, 1951, the policy applied only to accidents which occurred during the policy period. That the injuries for which this claim is made occurred after all operations or work of the plaintiff at 3905 Faversham Road, University Heights, had been completed and that both policies described in the pleadings contained specific provisions that the insurance designated “Premises-Operations” did not apply to any accident occurring after operations being performed by the insured had been completed or abandoned at the place of occurrence thereof and away from the premises owned, rented or controlled by' the insured. Said policies further provided that any operations of the insured should not be deemed incomplete because improperly or defectively performed or because further operations might be required pursuant to a service or maintenance agreement. It is finally alleged that the plaintiff did not purchase “Products” liability as defined in the policy, such coverage being excluded by the terms of the insurance agreement.

The plaintiff’s reply admits the allegations in the answer concerning the suit filed by Jacqueline Bialosky and the effective dates of the policies of insurance. The plaintiff does not deny the provisions of the policies as pleaded in the answer but does deny that he is without coverage for the accident pleaded in his petition under the terms of the said policies.

The defendant claims the following errors:

“1. The Trial Court erred in holding that the accident caused by a defective plumbing fixture, occurring in January 1952, eight months after the installation of the fixture by the plaintiff, was covered by either policy issued by the defendant to the plaintiff.

“2. The Trial Court erred in holding that the defendant was required to defend the action brought against the plaintiff even though there was no coverage under the insurance contract between the defendant and plaintiff.

“3. The Trial Court erred in holding that since the defendant had protected the interest of the plaintiff in the action brought against him, while defendant was investigating to determine whether there was any possibility of coverage, it could not thereafter, before the plaintiff had been in any way prejudiced, refuse to defend the plaintiff on the grounds of non-coverage.”

The facts, by virtue of the admissions in the pleadings, stipulations of fact and uncontradicted evidence, are, for the most part, not in dispute and may be summarized as follows:

1. The defendant issued two policies of casualty insurance to the plaintiff covering personal injury and property damage under two subdivisions of the provisions of the policies — that is: Premises-Operations and Independent Contractors. The only coverage here involved is “operations” defined in the policy as all operations during the policy period which are necessary or incidental thereto. (There is no indication in this case as to which policy issued to the plaintiff is the basis of the action.)

2. The plaintiff, as a plumbing sub-contractor, furnished labor and materials for the plumbing work in a house located in University Heights, which sub-contract included the furnishing and installation of a toilet tank with a trip lever thereto attached.

3. The work was completely finished and material furnished within the term of the first policy of insurance which ended May 22, 1951 at 12:01 A. M. No work was done or material furnished by the plaintiff after that date.

4. The alleged injury to Jacqueline Bialosky by the breaking of the porcelain trip lever of the toilet tank occurred on January 4, 1952.

5. The plaintiff was one of three defendants in an action filed by the injured party seeking $15,000 damage for the alleged injuries, the negligence charged being as above outlined. The accident arose because of a claimed defective condition of the trip lever and not because of the manner of its installation.

6. The other defendants were Joseph Costanzo, the builder, and the McKee Plumbing Supply Company, who sold the toilet, tank and trip lever to this plaintiff.

7. Before trial, the claim of Mrs. Bialosky was settled, this plaintiff contributing $100 to the total amount of the settlement of $550.

8. When defendant was notified of the action against plaintiff, it took some active part in the defense until it concluded, upon investigation, that the alleged injury did not come within the policy coverage.

9. Whereupon on November 11, 1952, the defendant disclaimed any obligation to defend the action or to assume any part of plaintiff’s liability, if any, and notification of its disclaimer was sent to the plaintiff by letter of that date, and the pleadings were returned. Such action on the part of the defendant took place before the settlement was negotiated by the plaintiff in conjunction with the other defendants. The settlement was concluded without the knowledge of this defendant.

10. The policy provisions are correctly pleaded as above set forth.

11. There is no evidence in the record dealing with the question of whether or not there was any negligence on the part of any of the defendants (including this plaintiff) in the action of Mrs. Bialosky seeking damages for the alleged defect in the trip lever.

From the record, it is clear the plaintiff purchased insurance coverage under two sub-divisions of the policies of insurance delivered to him. One was “Premises-Operations” dealing with accidents occurring while acting in furtherance of his plumbing business wherever such work was conducted. The other sub-division for which coverage was purchased, included within the provisions of the policy, was “Independent Contractors” which is not involved in this action.

In interpreting the extent of the coverage under the term “Operations” upon which the plaintiff’s rights in this case must be determined, all of the applicable provisions of the policy must be considered. The first exclusion under this sub-division (operations) contained in the policy is:

“Operations * * * if the accident occurs after such operations have been completed or abandoned at the place of occurrence thereof * * * ”

This language, together with the intention expressed by the definition of Hazards in paragraph VI that only accidents which occur during the policy period were protected and under paragraph (d) of “Exclusions” which provides: “This policy does not apply * * *:

“d. Under division 1 (Premises-Operations) * * * to liability with respect to which insurance is or can be afforded under division 4 of the definitions of hazards * *

(Division 4 has to do with “Products” coverage which is quoted above.)

It is clear that the policy which plaintiff purchased included under the Definitions of Hazards, in addition to public liability with regard to his own premises, protection while work that the plaintiff had contracted to do was in progress at any location where it required him to be or the work to be done. Also, as to this category, if sub-division No. 4 would or could have insured against the hazard, then the provision of the policy protecting “Operations” would not apply. The provisions of the policy as to the coverage afforded are clear and unambiguous.

The first policy issued for casualty coverage was for one year beginning May 22, 1950, so that where the alleged injury occurred after the policy expired, it does not come within the terms of the policy unless protection was purchased for “Products” liability as distinguished from “Operations.” An injury not directly attributable to the insured’s work after operations had been concluded was excluded from the provisions of the policy. It was, in fact, so far as the admitted facts in the case are concerned, an insurance policy protecting against the hazards of “operations” and not “products.”

Some claim is made that the plaintiff, depending on the knowledge of the defendant (through its agent) of plaintiff’s business, and his insurance needs, could reply on the defendant to writ a policy affording complete protection, including the hazard here involved. If this be so then the plaintiff should have sought reformation of the policy to provide the protection claimed before seeking damage for coverage clearly not within the terms of the policy delivered.

Nor can the provisions of the second policy have application here. All “operations” with respect to the plumbing work in the Bialosky residence at 3905 Faversham Road, University Heights, has been completed before the beginning of the policy period.

For the foregoing reasons, the judgment of the Municipal Court of Cleveland is reversed and final judgment entered for the defendant.

Exceptions noted.

HURD, and KOVACHY, JJ, concur.


author: By GESSAMAN, J.

text:
    HOYE et, Plaintiffs, v. SCHAEFER, Recorder, etc., et, Defendants.
    Common Pleas Court, Franklin County.
    Nos. 189975, 189976, 189977, 189978, 189979.
    Decided September 13, 1957.

      George, Greek, King & McMahon, for plaintiffs.
    Thomas W. Applegate, C. Richard O’Neil, for defendants.
   OPINION

By GESSAMAN, J.

The above cases have been submitted to the Court upon the pleadings, the evidence and the briefs of counsel. We originally decided the cases on May 25, 1955, and allowed a permanent injunction on a jurisdictional question. The judgment was affirmed by the Court of Appeals but was reversed by the Supreme Court. Hoye v. Schaefer, Recorder, 166 Oh St 277.

Involved herein is the proposed incorporation of the Village of Franklin Heights. Each of the above plaintiffs filed suit to enjoin the defendant County Recorder from making the record and certifying the transcript, within the time specified in §707.20 R. C. The cases have been remanded to this court for further proceedings according to law.

Counsel for the defendants urge that by virtue of the provisions of §707.20 R. C., the only ground for petitions to this Court is that of error. This section is applicable because of the fact that the proceedings to incorporate were commenced with the trustees of Franklin Township. The pertinent part of §707.20 R. C., reads as follows:

“* * * No injunction shall be brought, as provided in §707.11 R. C., unless such action is instituted within ten days from the filing of the papers by the board of township trustees with the county recorder. The right of petition to the court of common pleas for error shall exist as provided in §§707.11 to 707.14, inclusive, R. C.”

Under the rule that statutes or sections in pari materia are to be construed together, recourse may be had to the several sections or statutes for the purpose of arriving at a correct interpretation of any particular one. 37 O. Jur. 602, Section 333, Statutes. Such interpretation is necessary, in this instance, by virtue of the apparent intention of the General Assembly to permit the filing of a petition for an in junetion upon any of the grounds enumerated in §707.11 R. C., in the first sentence of §707.20 R. C., quoted supra, and the conflicting language of the second sentence apparently limiting the ground to one. By this latter sentence “The right of petition to the court of common pleas for error shall exist as provided in §§707.11 to 707.14, inclusive, R. C.”

First, we observe that this provision does not necessarily limit the clear implication of the prior sentence to the effect that the petition may be filed upon any or all grounds specified in §707.11 R. C. Furthermore, the right to petition the Court for error as provided in §§707.11 to 707.14 R. C., includes all of the grounds enumerated in those sections. If the General Assembly had intended to limit the ground to error alone, there would have been no need to use the words “as provided in §§707.11 to 707.14, inclusive, R. C.” Furthermore, by using those words, it is our opinion that the word “error” was and is used in the broad sense to include all of the grounds enumerated in §§707.11 to 707.14, inclusive, R. C.

A further basis for this conclusion is found in the language used in part of §707.13 R. C., as follows:

“If no error is found in the proceedings before the board of county commissioners, and no inaccuracy in the boundaries, and if the court further finds that the limits of the proposed corporation are not unreasonably large or small, and that it is right, just, and equitable that the prayer of the petition presented to the board be granted, the petition for such injunction shall be dismissed.”

In other words, it is clear from that language that the Court must find favorably for the incorporation on all four of those elements before it can dismiss the petition for the injunction. By the provisions of §707.13 R. C., the Court “Shall make an order enjoining the County Recorder from making the record” if it finds against the incorporation on any one of the four grounds.

Therefore, construing all of these statutes together,, it is clear that the word “error” found in §707.20 R. C., was used in a broad, rather than a narrow sense, and that it includes all of the grounds specified in §§707.11 to 707.14, inclusive, R. C.

Counsel for the plaintiffs contend that the map is inaccurate. The word “accurate” is defined in Webster’s International Dictionary as: “free from error or defect.” In our opinion the map is inaccurate in at least two respects; that is, it has two errors or defects.

On the map is a legend which specifies that Franklin Township is shaded in red. We find, however, that an area of .92 acres, known as the “Schlee School property” is shaded in blue which color, according to the legend, constitutes the City of Columbus. This is admittedly an error and in this respect the map obviously is inaccurate. The property is in Franklin Township. On the east edge of the southerly portion of Franklin Township there is a strip about three miles long and about seven hundred feet wide, that has not been shaded. It is true that for some reason the maker of the map ran a red line along the printed boundary line of the township, but it is also true that a large area which is part of the township, has not been shaded. This is an inaccuracy.

Sec. 707.15 R. C., requires that the petition for incorporation “* * shall * * (B) Be accompanied by an accurate map of the territory; * *” The petition in this case was not, as we have shown, accompanied by an accurate map. This constitutes error in the proceedings. In the case of State, ex rel. Lantz, v. Board of Trustees of Franklin Township, 147 Oh St 256, the Supreme Court denied a petition for a writ of mandamus to compel the trustees, among other things, to make a finding that “territory described in his petition be, with the assent of the qualified voters thereof, an incorporated village * The Court held that:

“The board of township trustees was warranted in refusing to accept the petition and map with conflicting descriptions of territory and in refusing to order an election.”

It was error to accept such a map in the proceedings now under consideration. The map is not accurate and should not have been accepted by the trustees.

In the case of Norfolk and Western Railway Company v. Schaefer, Recorder, 69 Abs 591, Judge Clifford of this court held that:

“A map or description from which bona fide disputes may arise concerning the location of boundaries does not have that degree of certainty which the statute requires.”

We agree with that statement. In at least two respects the map is in such condition that bona fide disputes can arise concerning the location of boundaries.

Another error complained of by the plaintiffs is that the election was not held in a “convenient place.” Sec. 707.16 R. C. The area sought to be incorporated is “U” shaped and it is very large, embracing approximately twenty-two square miles. The election was ordered to be and was held in Franklin Township Fire House No. 3, located at 2195 Frank Road. The map shows that this road is in the extreme southeast part of this “U” shaped area, and that those who lived in the western and northern parts of the township would have several miles to drive in order to vote their opinion. This location was not a “convenient place” and the Board of Trustees erred in selecting it as the voting place.

Because of the shape and size of the area, the Court is also of the opinion, and therefore finds, that the limits of the proposed municipal corporation are unreasonably large and that it is not right, just and equitable that the prayer of the petitions presented to the Township Trustees be granted. Counsel for the defendants claim that Mr. Edward Tonti, a builder, is the man behind these petitions now under consideration. In referring to him, counsel for defendants, at page four of their brief, say:

“He has extensive building enterprises in Franklin Township. Unless he can rely on annexation he does not stand a chance of getting sewer and water facilities for his projects.”

We accept this concession and then observe that without these facilities and considering that this area is contiguous to the City of Columbus and will therefore grow rapidly, a health menace will result. Considering the size and shape of the area in question, the officials of a new municipal corporation would be faced with an insurmountable task in getting water and sewers to the inhabitants. The area is too large and it is neither right, just or equitable that such a condition should be allowed to develop. The same is true of police protection, to a limited degree fire protection, and all of the other functions that a municipality is called upon to furnish (or should furnish) in our complex way of life.

Counsel for the defendants urge that the plaintiffs herein are not “persons interested.” Sec. 707.11 R. C. It is admitted that all of the plaintiffs were adult resident freeholders of Franklin Township when the petitions herein were filed. Mr. Hoye, alone, has since moved out of the township. We concur in the opinion of Judge Leach of this court in Hicks v. Cain, etc., No. 193,851 to the effect that

“We think it clearly follows, as a matter of legislative intent, that an adult resident freeholder in the area sought to be annexed, by virtue of such status alone is a ‘person interested.’ ”

All of the observations which we have heretofore made and all of the conclusions which we have heretofore reached in this opinion are based solely upon evidence submitted to this court at the hearings held prior to our decision of May 25, 1955. For the reasons which we have given, it is our opinion that an order shall issue enjoining the County Recorder from making the record.

Summarizing, it. is our opinion that the evidence clearly establishes two errors. First, that the petition was not, when filed, and still is not accompanied by an accurate map of the territory, and, second, that the place at which the trustees ordered the election to be held was not a convenient place. We are also of the opinion that the evidence clearly establishes that the limits of the proposed municipal corporation are unreasonably large and that it is not right, just or equitable that the corporation be created.

Since the case has been remanded to this Court, counsel for all of the parties herein have agreed upon certain stipulations of fact, all of which have occurred subsequent to the date of our original decision herein. Counsel for the defendants object to the consideration of those facts upon the ground that they are irrelevant. In other words, counsel for the defendants urge that the cases must now be decided upon the facts as disclosed by the original evidence. Counsel for the plaintiffs urge that whether or not an injunction is to be allowed now, depends upon the facts in the original evidence plus the developments up to the present date as disclosed by the stipulation of facts. There have been several developments since May 25, 1955, which, if relevant, would have a decisive bearing upon the question of issuing an injunction; — particularly upon the question as to whether it is right, just or equitable that the incorporation be allowed. In fact, they are of such weight that they would dictate a negative answer on that question.

In view of our conclusion already expressed, we consider it unnecessary to pass upon the relevancy of, or to consider, this evidence. We have referred to it only for the purpose of emphasizing the fact that our conclusions herein are not based upon any facts disclosed in the stipulation of facts.

An entry may be prepared in each case allowing the injunction as prayed for.