author: Price, J.

text:
    Bell v. The City of Cincinnati.

      Municipal corporation control of workhouse — Not in proprietary relation to inmates — Sections 1536-100 and 1536-677, Revised Statutes — Also Sections 2100 and 2105, Revised Statutes — Workhouse guards perform service to public — Workhouse maintained not for profit — Guard injured by explosion — Municipality not liable, when^Law of corporations — Law of negligence.

    1. By paragraph twenty (20) of Section-1536-100, Revised Statutes (Section 7, Municipal Code), a municipal corporation is authorized to establish, maintain and regulate a workhouse therein; and by Section 1536-677, Revised Statutes (Section'141, Municipal Code), the directors of public service are invested with the management and control of such workhouse in behalf of the corporation, and in so managing and controlling said workhouse, th“ municipal corporation, through its directors of public-service, acts in a governmental capacity, and not in a proprietary or business relation to the inmates or persons in its employ.
    2. A person sentenced to the workhouse shall be kept and confined at hard l bor therein, or if such labor cannot be furnis..ed therein, such person may be employed elsewhere within the corporate limits, if so authorized by ordinance, and shall there be subject to the rules, regulations and discipline of the workhouse, until discharged, as provided in Section 2100, Revised Statutes, and the performance of hard labor in a stone quarry under con.trol of the corporation within its limits, as an adjunct to the workhouse, is within the provisions of said section.
    3. Under the provisions of Section 2105, Revised Statutes, the workhouse guards have such powers of policemen as may be-necessary for the proper performance of the duties of their position, and while in the discharge pf such duties, are performing service to the public in aid of the enforcement of law and order.
    4. Such workhouse is not established, nor can it be legally managed and maintained merely for profit, but as an agency of the state for the. enforcement of its laws and the ordinances of the-, municipality; and it does not cease to be a public or governmental agency because some revenue is .derived from the labor of the inmates, where the revenue is applied in most part in payment of the expenses of its maintenance and operation. In such case the revenue is incidental to the main purpose.. Toledo v. Cone, 41 Ohio St., 149, distinguished.
    5. One employed and acting at the time as a guard of prisoners: working in a stone quarry within the corporation, and who is ■ injured by explosion while attempting to remove the lid of a box of percussion caps to be used in setting off a blast in the quarry, cannot recover damages of the municipal corporation for injuries sustained by the explosion.
    (No. 11423
    Decided March 9, 1909.)
    Error to the Superior Court of Cincinnati in General Term.
    The plaintiff in the trial court, who is now plaintiff in error, alleges in his amended petition, that on the 22d day of September, 1905, and for a considerable period before^ that, to-wit, since July 6, 1903, he was in the employ of the city of Cincinnati as a guard at its city workhouse on Colerain avenue in the city, where he was employed to guard the prisoners that were incarcerated in said workhouse; that the city through its duly authorized officers and agents, his superiors in command, on the 22d of September, required the plaintiff, as it had previously done, to assist in the employment of explosives at a certain stone quarry owned and worked by the city for profit, near said workhouse, and for some weeks prior to said date, required the plaintiff to undertake the care, management and conduct of explosives in said quarry about which he had no knowledge or experience as to their composition or use, force or dangerous qualities, nor did he realize the danger connected therewith or in the handling or using the same in connection with the blasting of said quarry where he was placed by the city.
    He further complains that without realizing or knowing the danger connected therewith, and without knowing the manner in which such explosives acted at different times and on different occasions, and without having acquired any knowledge with reference 'to the same, the plaintiff did as was directed by the defendant, and was present and undertook to comply with the. orders of the city in working in said quarry up to and at the time of the injuries received on September 22, 1905; and that the city through its said officers and agents had knowledge of the ignorance and inexperience of the plaintiff; and further, that those whose orders he was bound to obey knew that plaintiff was ignorant of the danger in the use of said explosives, and that they did not warn or advise, or instruct the plaintiff as to said dangers, nor did they instruct him how to handle or use the same, although they were well informed on the subject, having previously for a long time had charge of said quarry in excavating stone by blasting and other means, which stone the city sold to dealers and consumers for profit.
    He further states that about half past one of September 22, 1905, the plaintiff went .down to the house where the city was in the habit of keeping its explosives, and there obtained from the powder house, so called, a box of caps that were used in the causing of explosions in the quarry; “that taking this box of caps, without knowledge as to how they were made, of what they were composed, or how they would act or explode, and in fact being ignorant altogether of the dangerous character of same, this plaintiff in undertaking to do the work assigned to him to be done by the defendant city, took said box of caps in his-hands and attempted to open it for the purpose of getting therefrom caps to be furnished to the men who' were so engaged in said blasting, and thereupon, as he removed the lid, or undertook to remove the lid from said box of caps, the same exploded in his hands, without any fault or negligence on part of this plaintiff, who tried to remove the cover or lid as he had supposed was the right way to do the same, when said box of caps exploded, there being one hundred caps in said box and the same exploded simultaneously.” The plaintiff then avers the caps were put in the said powder house by the city for the purpose of blasting in the quarry; that plaintiffs duty required of him to go to the powder house to get such box of caps and remove the lid and give the caps to those engaged in blasting in the quarry.
    The explosion of the caps blew off one hand, lacerated the other, put out one eye, and inflicted other terrible injuries described in the petition, which caused permanent disability and great bodily suffering, for all of which he prays damages in the sum of $25,000. During the progress of the trial, an amendment to amended petition was filed by leave of court, setting up that plaintiff was totally disabled and always would be; that he had earned $1,000 a year prior to the injury, and that he will never be able to earn anything hereafter.
    A demurrer to the amended petition as amended was filed and overruled. The city,excepted. The defendant refiled its answer, in which it admits its character as a municipal corporation; that when the plaintiff was injured he was employed by the city, and that he sustained some injuries. AH other allegations are denied.
    The balance of the answer being of vital importance, it is here copied in part:
    “For a further defense this defendant says that under the laws of Ohio it maintains a workhouse in said city, for the imprisonment at hard labor there or elsewhere in said city of those prisoners duly sentenced by the courts to perform hard labor as punishment for offenses committed against the laws of the state and the ordinances of municipalities. Said hard labor as punishment for said offenses is provided by said city in various forms and places, some of said prisoners being required to labor in factories in the workhouse, others in general labor about the workhouse, and others working at hard labor in the quarrying and blasting of stone in the workhouse quarry near said workhouse, which is provided by the city as a place where said prisoners may work. That in performing the work of quarrying in said quarry, and as part of the said hard labor of said prisoners, blasting operations are necessary in which explosives and dynamite and powder together with caps, fuses, etc., to explode the same are used. This defendant provides said place of quarrying and blasting for the labor of said prisoners in the workhouse, and the explosives, caps, fuses, etc., incidental to said labor and maintains the said institution and the labor of all prisoners committed thereto, under the authority of the laws of Ohio and in the exercise of this defendant’s public and governmental powers and duties as a municipal corporation and agency of the state of Ohio, which are conferred upon this defendant by the laws of said state. This defendant, in providing said form of labor for said prisoners, employs guards and attendants to supervise and control said labor, quarrying operations and the explosives needed in blasting, and prior to the time of the plaintiff’s injury this defendant employed the plaintiff as a quarry sergeant, whose duty was to command the squad of prisoners and the guards connected- with them -while said prisoners were engaged in the operations of quarrying and blasting, and whose duty was also to take charge of, at said quarry, and regulate the use of, all explosives, caps, fuses, etc., used in the performance of said labor by said prisoners; at the time plaintiff was injured he was the cjuarry sergeant or guard in charge of the prisoners at said workhouse quarry who were being required to perform hard labor therein by this defendant, and the work of the plaintiff in handling explosives, caps, fuses, etc., and supervising said prisoners in quarrying blasting operations, was being performed at the time of the plaintiff’s accident, as a part of the duties and. powers of this defendant of a governmental and public nature, conferred upon this defendant as an agency of the state by the laws of the state of Ohio.”
    For further defense the city alleges, in substance, that plaintiff was guilty of contributory negligence which caused his injuries, in that, at the time he was injured, plaintiff was a quarry sergeant or guard, duly appointed as such by the board of public service of the city, which had charge of the workhouse, and his duties required him to take to the workhouse quarry on Clifton avenue a squad of prisoners who worked in the quarry, to supervise them during their work, and to take charge and supervise and handle the explosives, caps, fuses, et cetera, which were .used in said quarry in blasting operations; that when he was injured, he was in the course of his duties in the act of opening a box of caps which were used in exploding blasts, and that well knowing their explosive nature, and that -they needed careful handling, did not use due care for his safety, *but attempted to remove the lid of said box by severe blows of a hammer or other instrument, with unnecessary force and violence, which caused the explosion.
    It is further alleged, that it was one of the terms of his contract of employment as quarry sergeant, that he take care of the prisoners at work, but to have control and charge of the explosives and caps, et cetera, which were to be used in quarry operations, and that plaintiff, well knowing the danger incurred in handling the same, assumed the risk of injury incident to the handling thereof.
    The reply denied all allegations in the answer, save the admissions therein made. On these issues the case was tried to a jury, and at the close of plaintiff’s evidence, the city moved the court to direct a verdict in its favor, which motion was overruled. The defendant introduced its evidence and rested. There was some evidence in rebuttal. The defendant thereupon again moved the court to direct a verdict in its favor, which was overruled. Exceptions were saved as to the ruling on each motion.
    The court refused to give some of the special charges submitted by defendant, to which exception was taken. The defendant also excepted to certain parts of the general charge.
    The jury found for the plaintiff and assessed his damages at $12,500. Motion for new trial was overruled and judgment rendered on the verdict.
    The case was 'taken on error to the general term and the judgment of special term reversed, for the following reasons, among others, shown by the record:

      1. - The court below should have granted the motion of defendant, made at the close of the evidence offered by plaintiff, to direct a verdict for defendant; and should also have granted the motion of defendant below at the close of all the evidence to direct a verdict for defendant.
    2. The court erred in its general charge, in leaving to the jury as a question of fact, whether the act of the city was in the exercise of a governmental, or ministerial duty, and in failing to lay down a rule to guide the jury in determining the quality of the acts of the city.
    Having so found, the court not only reversed the judgment of the special term, but rendered judgment for the defendant, dismissing the petition of the plaintiff as amended. The case is here on error to reverse the judgment of the general term.

      Mr. Charles W. Baker and Mr. Thorne Baker, for plaintiff in error.
    Without discussing the abstract proposition as to whether the city is liable or not for negligence when in the exercise of its governmental function merely, we respectfully claim and urge that it is liable when “the municipal corporation represents the pecuniary and proprietary interests of individuals.” Western College v. Cleveland, 12 Ohio St, 375.
    The doctrine seems to be well sustained that where a municipal corporation owns property and for its own benefit derives pecuniary emolument or advantage therefrom in the same way a private 'owner might, it is liable to the same extent as he would be for the negligent management thereof to the injury of others. Toledo v. Cone, 41 Ohio St., 149. ' ■
    Municipal corporations are liable for injuries to third persons, resulting from the negligence of subordinate officers or agents acting under their authority and direction, in the construction and maintenance of public improvements. In such cases, the maxim respondeat superior, properly applies, in the same manner and to the same extent, as in its application to the liabilities of private individuals. City of Dayton v. Pease, 4 Ohio St., 80; Cincinnati v. Cameron, 33 Ohio St., 336; Bailey v. Mayor, 3 Hill, 531; Bloom v. Nezvark, 3 N. P., N. S., 480; English v. Railroad Trustees, 8 W. L. B., 15; Collins, Admr., v. Greenfield, 172 Mass., 78; Deane v. Randolph, 132 Mass., 475; Sullivan v. Plolyoke, 135 Mass., 273; Neff v. Wellesley, 148 Mass., 487; Savannah v. Cullen, 38 Ga., 334; Augusta v. Hudson, 88 Ga., 599.
    From these authorities it will be noted that there are two very simple tests by which it can be determined whether a city is carrying on a ministerial or governmental so-called function:
    (1) Is the thing done by the city ordered and enjoined positively by law so that the city has no power to elect whether it will undertake it or not? •If it is not enjoined and ordered by statute, and the city can elect, it is ministerial.
    (2) And then again, and associated with the foregoing, is the thing done by the city as a private proprietor and for profit? If so, the act is ministerial.

      Measured by either and both of these tests, the ownership, maintenance and operation of a large quarry, a large and valuable piece of real property two miles from the workhouse, for the pecuniary gain and profit of the city is a ministerial act of the city, because the city is not ordered, or required by statute to own, operate and maintain it; it is free to elect whether it will or not; and having so elected it. must necessarily accept the burdens with the benefits.

      Mr. Edward M. Ballard and Mr. Dudley V. Sutphen, for defendant in error.
    Among the general powers which are given corporations by Section 7 of the Municipal Code is the one set forth in paragraph 20, to establish, erect, maintain and regulate workhouses. Ellis’ Municipal Code, (3 ed.), 59.
    The maintenance and control of workhouses are placed in the hands of the directors of public service by the provisions of Section 141 of the Municipal * Code (Section 1536-677, Revised Statutes).
    The legislature has expressly described what shall be done with a prisoner committed to a workhouse, and under certain circumstances authorizes the employment of prisoners at hard labor outside of the workhouse grounds but within the limits of the corporation, as set forth in Section 2100, Revised Statutes.
    Our statutes clothe guards of workhouses with certain police powers, as particularly set forth in Section 2105, Revised Statute/

      The city is not liable for any failure on its part to perform, or for the .negligence of any of its employes or agents in the performance of a governmental duty such as the prevention of crime and preservation of public peace and health. Abbott on Municipal Corporations, paragraph 966.
    Municipalities may provide by ordinance for the punishment of those found guilty of misdemeanors and such offenders may be sentenced to imprisonment in a workhouse maintained by such municipality. Section 1867 (1536-630), Revised Statutes.
    The leading cases illustrating the universal principle that a city is not liable in tort when it is engaged in the performance of public functions, authorized by the state, which are of a sovereign or governmental nature, are as follows: Western College v. Cleveland, 12 Ohio St, 375; Wh’eeler v. Cincinnati, 19 Ohio St., 21; Cincinnati v. Cameron, 33 Ohio St., 336; Robinson v. Greenville, 42 Ohio St., 625; Frederick v. Columbus, 58 Ohio St., 538; Rose v. Toledo, 1 C. C., N. S., 321; Green v. Commissioners, 3 C. C., N. S., 212; Alvord v. Richmond, 3 N. P., 136; Conner v. Cleveland, 1 Cleve. Law Rep., 257.
    It is uniformly held throughout the United States, that police officers are not agents of the city, but are agents of the state in the perform^ anee of public duties for the preservation of peace and order; that their acts cannot make the cities or towns which appointed them liable in damages to third persons. This principle finds support in the following cases: Buttrick v. Lowell, 1 Allen, 172; Dargon v. Mobile, 31 Ala., 469; McElroy v.
      Albany, 65 Ga., 387; Culver v. Streator, 130 111., 238; Craig v. Charleston, 180 111., 154; Caldzvell v. ■ Boone, 51 la., 687; Caldzvell v. Prunelle, 57 Kans., 511; Gullikson v. McDonald, 62 Minn., 278; Curran v. Boston, 151 Mass., 505; Worley v. Columbia, 88 Mo., 106; Woodhull v. Mayor, 150 N. Y., 450.
    The following cases support the doctrine that cities are not liable for the negligent acts of the members of their fire department: Fisher v. Boston, 104 Mass., 87; Cunningham v. Seattle, 40 Wash., 59; Hayes v. Oshkosh, 33 Wis., 314.
    It has been held that in maintaining prisons and lockups or penitentiaries a municipality is not liable for the acts of its employes. Brown v. Guyandotte, 34 W. Va., 299; Carter v. Winooski, 78 Va., 104; Gray v. Griffin, 111 Ga., 361; Eddy v. Ellicotville, 35 App. Div., 256. ' . '
    There are a number of cases in the United States which are almost identical with the case at' bar on facts-, and in all of these it' has been universally held that municipalities were not liable. Clodfelter v. State, .86 N. Car., 51; Alamango v. Albany County, 25 Hun, 551; Bourn v. Hart, 93 Cal., 321; Lewis v. State, 96 N. Y., 71; Nisbet v. Atlanta, 97 Ga., 650; Hughes v. Monroe County, 147 N. Y., 49; Moody v. State’s Prison, 128 N. Car., 12.
    Now as a matter of fact, the establishment and maintenance of a workhouse by the city of Cincinnati is not - positively enjoined on the city by law, but to say that because the city sees fit to do something for the benefit of the public at large as one branch in the police administration of the city — the exercise of a governmental function— it is to be considered as acting in a private capacity, is not sustained by authority. Tindley v. Salem, 137 Mass., 171; Wheeler v. Cincinnati, 19 Ohio St., 19; Curran v. Boston, 151 Mass., 505.
    The conduct and maintenance of a workhouse can only be considered the legitimate exercise of suitable police regulations such as a city undoubtedly has the power to enact. Alamango v. Albany County, 25 Hun, 551.
    The workhouse is not conducted with a view of pecuniary profit. The object and purpose of the' workhouse and the conduct of it, are not shown to be of the nature of a business, and therefore it only appears, that as a public institution it is managed in a judicious and economical manner.
    This point has been raised and considered in a number of cases and they have all uniformly held that the element of gain from disposal of the products of labor was but an incident to the general power which was being exercised by the corporation. Hughes v. Monroe, 147 N. Y., 49; Haley v. Boston, 191 Mass., 291, 5 L. R. A., N. S., 1005.
   Price, J.

The trial court refused to direct a verdict for the defendant at the close of plaintiff’s evidence, and also refused to direct such a verdict at the end of all the evidence introduced by the parties. The overruling of these motions for a verdict was held, at general term, to be error, and such error was one of the grounds for reversing the judgment 'rendered at special, term. The plaintiff in error, Bell, complains of the holding at general term on this subject, and this condition of the record has imposed upon us the duty of considering the nature and effect of the evidence submitted to the jury. Did the court err in declining to direct a verdict when plaintiff rested his case? If not then, did it err in not sustaining the motion for the same purpose made at the end of all the evidence?

A proper determination of these questions does not involve the discussion and weighing of all kinds of testimony found in the record, such as goes to the character and extent of the very serious injuries received by the plaintiff when the box of capsq exploded in his hand — the history of his connection with the Cincinnati workhouse — the duties cast upon its different officers and employes, and the subsequent history of plaintiff’s wounds. We have not disregarded such evidence, but it is not necessary to a decision that it be made the subject of comment in this opinion.

The important question raised in the record is, who is responsible for the great injuries admittedly sustained? The solution of the question depends on the conduct and acts of Bell himself; attending the explosion, and also upon the capacity in which the city was acting in employing him and assigning to him his duties in the discharge of which he claims he was injured.

On or about the 6th of July, 1903, he was made a guard in one of the shops of the Cincinnati workhouse. This workhouse is on Colerain avenue. There were various shops connected with it and inside the walls of the workhouse grounds. It was his duty to have charge and control of prisoners placed under his care and to. oversee their conduct at work, report misconduct to the foreman, and perform other duties incident to the position of a workhouse guard.

In addition to these workhouse shops, the city had control of a stone quarry on Clifton avenue near Burnet Woods Park, and about two miles, from the city workhouse, but inside the corporate limits of Cincinnati. In about two years after Bell had been made a workhouse guard, and after having served that long in that capacity, he was. made sergeant at the stone quarry, and entered upon the discharge of the duties of that office. The keys of the shéd called the powder house were turned over to him, and he was in charge of the taking of prisoners from the workhouse quarters to the quarry — see that none escaped and that they performed the tasks set before them, and return them to prison in the evening.

In order to facilitate the work of quarrying stone, drilling and blasting were resorted to, and this work was under the supervision of Bell, and in the shed for which he held the keys, the powder, dynamite, and other high explosives for use in blasting, were stored. On the 22d of September, 1905, over two months after beginning service as quarry sergeant, he received the injuries complained of while attempting to open a box of caps at the shed. These caps were to-be used in making a blast in the quarry.

The plaintiff asserts that he had received no-instructions or warnings as to the dangerous and explosive character of these caps, and had no knowledge or experience on the subject prior to his injury, although the officers of the workhouse over him had such knowledge which they should have imparted to him.

For the present we will not further consider the position and conduct of the plaintiff, and pass to a consideration of the capacity in which the city acted in employing this sergeant of the quarry and the legal relation which the city sustained to the workhouse and of course the quarry which was being used as a part of the workhouse. When plaintiff was employed as quarry sergeant and assigned to duty, was the city acting in a governmental, or proprietary capacity? Was the workhouse — its various shops and the quarry on the hills being operated by the city government as a part of its governmental work under the statutes of the state — attempting to discharge duties to the public, made so by positive law? Or was it conducting a business for profit, making use of the workshops and the quarry to that end as an ordinary proprietor would do for personal or private gain? If the relation the city bore to the workhouse and quarry was governmental, and their operation and control were the exercise of governmental power, the city is not liable to plaintiff, even if he was injured through the neglect and want of care of some other or superior officer of the institution, where the statute creates no such liability. This has been held in numerous cases, such as Western College v. Cleveland, 12 Ohio St., 375; Wheeler v. Cincinnati, 19 Ohio St., 19; City of Cincinnati v. Cameron, 33 Ohio St., 336; Robinson v. Greenville, 42 Ohio St., 625; Frederick, Admx., v. Columbus, 58 Ohio St., 538. We therefore proceed to learn the legal attitude of the city towards its workhouse and its prisoners, and this we gather from several sections of the Revised Statutes. Paragraph 20 of Section 7, Municipal Code, invests municipal corporations with authority “to establish, erect, maintain and regulate jails, morgues, houses of refuge and correction, workhouses, station houses, prisons and farm schools,” and the last, clause of Section 7 provides: “All municipal corporations shall have the following general powers, (those named in paragraph 20 included) and council may provide by ordinance or resolution for the exercise and enforcement of the same.”

The maintenance and control of workhouses devolve upon the directors of public service, as provided in Section 141, Municipal Code, or Revised Statutes, Section 1536-677. Section 1536-369 defines the persons who may be committed to a workhouse, and the following section provides that a person so sentenced “shall be received into the workhouse, and kept at hard labor therein, of if such labor can not be furnished therein, then such person may be employed at hard labor elsewhere within the limits of the corporation where such employment shall be authorized by ordinance, and shall be subject to the rules, regulations and discipline thereof, until the expiration of his sentence, when such person shall be discharged.”

Section 1536-371 provides for a cumulative sentence for second offenses by one having served a workhouse sentence, and Section 1536-373 authorizes the board of public service to discharge a prisoner for good and sufficient cause. It also authorizes the board to establish rules and regulations as to- parole of prisoners, their recapture and return to workhouse, et cetera. The next section prescribes the punishment for escape or attempt to escape. There are other provisions of the statute directing the management and control of such institutions, but they are not essential to a decision of our question. '

Section 1536-375 provides that “The superintendent, assistant superintendent, and guards of the workhouse shall have such powers of policemen as may be necessary for the proper performance of the duties of their position.” These workhouse institutions, being under the control and management of the board of public service, are public institutions of the city, for the board of service is a branch of the municipal government, whose powers and functions are defined by the sáme sovereign legislative power that creates and limits the authority of the executive and legislative departments of a city government. In the execution of the powers conferred as to workhouses, and the performance of the duties imposed in caring for persons sentenced to perform labor therein, the municipal corporation is an agency of the sovereign state, in aid of the preservation of order and the punishment of offenders against the laws of the state and the ordinances of the corporation. Through such agency and others the state seeks to carry on its system of government and enforce the laws and to this end it has liberally parceled out its powers to municipal corporations as the most successful means of securing good government to the people. Applying • these statutory provisions and keeping in view their evident purpose, how stands the case at bar? The workhouse is one of the penal institutions of the state and subject to its laws. The plaintiff, Bell, was an officer of that institution and while he, as sergeant of the quarry, was there injured two miles from the workhouse proper, yet he was injured in the scope of the workhouse, for the quarry was being used for workhouse purposes. His claim is not stronger than it would be had he been injured in opening a box of caps within the walls of the institution down in the city. On this ground the city defends.

However, plaintiff in error would take this case out of the above rule and parry the force of such defense by the claim, as he asserts, that the quarrying of stone was a commercial or business enterprise; that the city owned ' and operated the quarry for profit; sold stone for macadam to .contractors for building purposes in competition with other quarrymen, putting the profits in the city treasury, and for that purpose availed itself of the labor of workhouse prisoners in blasting and getting out the stone. The brief for plaintiff in error makes the very broad statement that “in operating this quarry, the city of Cincinnati not only provided work for inmates of the workhouse, but it sold the product of the quarry, namely, building stone that was gotten out, and also broken stone of various sizes, and all sold by the city to contractors for building and macadam, and as to the smaller product, for surfacing streets. At the same time the city was leveling off some of its rough hilly ground-adjacent to one of its-parks,” etc.

In support of such sweeping statement, we would expect the facts to appear in the record with reasonable clearness, for the city denies ownership of the quarry, and the nature and extent of its title thereto, we are unable to find in the evidence. The brief cites but two pages of the record as containing the facts on the subject — pages 51 and 52. We have diligently searched the record for additional evidence to support the claim and have failed to find ány. Turning to those pages, we find the examination of Mr. Bell, the plaintiff below, as follows:

' “Q. Mr. Bell, at this quarry, from the time you went there on the 5th of July, I wish you would tell these gentlemen what it was they got out of tljat quarry. A. The quarried rock, and the building rock was sold to the various builders, and the small rock was hauled down to the prison sheds and the prisoners that was unable to walk to the hill, such as cripples, one-legged fellows and one-armed fellows — they were broken — ■ they hauled the rock down there for them.
“Q. Broken up into what? A. Broken up into four different sizes, very small size, little larger — there was four different sizes of them; the largest size was rock macadam, were sold to people for driveways, and the smaller lots were pads — I don’t know what they could use them for — driveways ?”

It is upon this evidence that plaintiff relies to establish his claim that the city was acting in a commercial or proprietary sense, and not in a governmental capacity. We are not directed to any other evidence on* the subject, and we find no other in the record.

We think this falls far short of sustaining the contention of plaintiff in error. There is no proof that the city owned the quarry; no proof as to the nature of its title, further than that it was in the management and operation of the quarry as a part of the workhouse. There is no evidence that one penny of profit was realized on the disposition it made of stone, if that be a matter of concern. In so far as the facts inform us, or fail to inform us, the receipts for stone sold would only part pay the expenses of keeping and guarding the prisoners while engaged in the quarry, and we will hesitate to believe that the city was engaged in a commercial enterprise while it may have been endeavoring, so far as possible, to make the workhouse self-sustaining. All prison labor, including that performed in the state penitentiary, is utilized.to pay the cost of maintenance, and in so doing, the institution— the state — is not engaged in a commercial enterprise for profit. We do not take -issue with the cases cited by plaintiff in error as to the law, but he fails to furnish the facts to bring his case within any rule they lay down.

Great confidence is expressed in City of Toledo v. Cone, 41 Ohio St., 149, as sustaining plaintiff’s contention, but it can be so distinguished from the case at bar, that it is not a controlling authority here. That case, as submitted to this court and as reported, involved the sufficiency of the petition in stating a cause of action; There was no bill of exceptions brought up as part of the record, and as. there was a verdict for the plaintiff in the trial court, the only question that could be reviewed in this court was, whether the petition stated a cause of action that would support the verdict. This court held that a cause of action was stated. The petition at length appears in the statement of the cause, and it presents a cause of action signally different from the one relied upon in this case. While we do not question the soundness of the judgment of this court in that case, we are quite sure that it does not rule as the law in the instant case. A careful reading of the allegations of the petition is sufficient to mark the distinction we suggest. Here, we have a case where the city through one of its departments of municipal government, is enforcing or carrying out the sentences to the workhouse of not only persons convicted by its-own police court and other local magistrates, but sentences of courts outside of Hamilton county, whose prisoners were sent to the Cincinnati workhouse to be punished. Surely in enforcing judgments of such courts, the city*acts in a governmental capacity, and in no sense in a private or proprietary relation. It was discharging public governmental functions, and the plaintiff, when he was injured, was a 'part of that government. In the brief of the city is a collection of many cases where the doctrine above announced is fully discussed. In general terms, it is sufficient now to say, that the sale of some of the products ,of the quarry was merely incidental to the main purpose of conducting the workhouse as a penal institution. The law in such case may be found in Hughes v. County of Monroe, 147 N. Y., 49; Curran v. Boston, 151 Mass., 505; Haley v. Boston, 191 Mass., 291; Clodfelter v. State, 86 N. Car., 51. These cases cite many others of like force and character.

There is another view of this case that compels our attention. Aside from legal considerations in which we have indulged, has the plaintiff made out a case on his own evidence, and which was challenged as insufficient by the motion to direct a verdict? His counsel in .the brief states the case as follows: “Just prior to the time Bell sustained the injuries complained of * * * Wood (who was the regular man to handle the caps) left the quarry. It became necessary on this date to open a box of powerful percussion caps to fire .a blast, and Bell in the discharge of his duty attempted to do this. The box containing caps was like a blacking box and the lid became wedged as it was half off. Bell, in his ignorance, inserted a thin strip of sheet iron under the raised edge of the lid to pull it off, and the explosion occurred, and Bell was horribly mutilated.”

This statement is based on the testimony of the plaintiff where he describes what he was doing when injured, as bn pages '39 and 40 of the printed record. “When I took charge of the hill, this colored man found a box had a few caps in it, just how many I don’t know. It was the first caps I ever saw, the first box I ever saw. And the day I went down to get this material to make that blast there were no more caps in the box, but the institution had bought a box of caps a few days before and had put them in this magazine; and this was a round box, something similar to a ten cent blacking box, as near as I can remember. I took it out arid tried to remove the lid by twisting and pulling; the lid was very tight.”

“Q. Had you ever before that time opened a box like that? A. I had never seen a box.

“Q. Had you ever seen a box like that? When you went up there you found a box that had been opened with these few caps? A. New caps. •

“Q. But at this time had they been used? A. They had all been used up.

“Q. Tell the jury just exactly what you did. A. Well, I tried to remove the lid, twisting* it around that way, and the lid fit down to the shoulder, probably a half inch on the box, making it very hard to remove. I twisted the lid around until it got up to the top of the box on one side, and on the other side to the shoulder in a way that I could neither push it back on or pull it off. So I reached over to the tool bench, picks up a little piece of — I couldn’t say exactly what it was; it was a piece of sheet iron or something, a very light piece of material, and gets under the edge of this lid and pulled the lid off; and whatever caused the explosion I will never be able to tell you, but I made a pull or two at the lid and the explosion came. Whatever caused it I will never be able to tell.”

This is plaintiff’s account of the transaction. Two or three witnesses testified that Bell picked up a small tack-hammer and pounded the lid. But we accept his own version as the most favorable to his claim. He was a man of mature age and had been at the quarry as guard for about two months and knew that drilling for blasts and blasting the rock were common occurrences, and that in blasting high explosives were used; and knew that the caps like those he exploded were in common use to set off the blasts. On this occasion he was aware that some of these caps were needed to set off the blast, and he surely knew that the caps themselves were of an explosive character in order to be of practical use in making a blast. He says he knew nothing about the caps; that no one warned or instructed him in reference to the dangers of handling the caps or in the way of removing the lids from the boxes. On the other hand, no one ordered or directed him to open the box. It was his own voluntary act, and he selected the manner of removing the lid. The method was entirely his own. While perhaps he did not know the danger of a mistaken method, it is evident that he did know that such percussion caps contain elements of danger, and he thought his course of removing the lid was a proper one. As no superior seems to have been present, and no one suggested his method of performance, it was of his own selection.

It seems to. us that he failed to make a case on the facts and therefore there was nothing to submit to the jury, and the trial court should, for this reason, as well as the first, have directed a verdict. Entertaining these views, it is not necessary to consider the charge of the court or its refusal to charge, and the judgment of the court below is affirmed.

Judgment affirmed.

Crew, C. J., Summers, Spear and Shauck, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    The Cincinnati Gas & Electric Company v. Archdeacon, Administrator.

      Joint use of pole — By telephone and electric light companies — Each company liable to employe of oilier company when — Question of negligence of employe — In case triable to jury — Application of law to fact — Function of court.

    1. When two companies engaged in enterprises calling for the use of wires to carry electricity arrange for the joint use of a pole to sustain them, each company is, with respect to such use, charged with the same duty toward employes of the other as to its own; and the correlative duty of the employes to exercise due care for their own safety is the same as to both companies.
    2. There can be no recovery against an employer for an injury to an' employe which he would not have sustained if he had not voluntarily and unnecessarily used an appliance for a purpose other than that for which he knew it to be intended.
    3. Though issues joined in a case are triable to a jury, when the facts are conclusively determined in a manner not affected by material error the application of the law to such facts is a function of the court, and its exercise, when properly invoked, becomes a duty.
    (No. 11152
    Decided March 9, 1909.)

      Error to the Superior Court of Cincinnati.
    ■ March 28, 1903, the defendant in error brought suit in the superior court to recover from the plaintiff in error and the City and Suburban Telegraph Company, damages on account of the death of his intestate, alleged to have been caused by the negligence of the original defendants. During the trial the defendant lastly named was by the plaintiff voluntarily dismissed out of the case, and the action preceded a verdict and judgment against the plaintiff in error. The Suburban Company was, at the time the plaintiff’s intestate received his fatal injury, engaged in the transmission of messages by telephone, and in the record it is referred to as the telephone company. Archdeacon was employed by the telephone company as a lineman. It' was alleged, that sometime prior to January 26, 1903, which was the day upon which the fatal injury occurred, the telephone company had permitted the electric light company to stretch a guy wire from one of its poles to a pole of the telephone company in such a negligent manner as to endanger the lives of the employes of the telephone company, and also to attach to its poles and there to maintain, wires for the transmission of heavy currents of electricity, the wire being defectively insulated to the great danger of its employes. On January 26, the plaintiff’s intestate, acting pursuant to directions of his foreman, as the petition alleges, without knowledge of said dangerous condition, coming in contact with one of said wires, was killed without negligence on his part and by reason of the condition of said light wires and said guy wire. The suit was for the benefit of the parents and the brothers and sisters of the intestate, he being unmarried. On April 7, 1903, the defendants filed separate answers admitting the appointment and qualification of the administrator, the corporate character of the defendants, and the allegations of the petition respecting the business in which they were engaged. March 11, 1905, the defendants filed a joint amended answer withdrawing the admission respecting the due appointment and qualification of the plaintiff, and denying that he became qualified until March 10, 1905. The defendants did not plead contributory negligence, but as the basis for the introduction of evidence to establish it relied upon their general denial of their allegations of the petition which were • not expressly admitted, which included the plaintiffs allegation that his intestate received the fatal injuries without fault on his part. On their allegation that the plaintiff was not appointed and qualified until after he instituted the suit, the defendants recovered judgment in the superior court. That judgment was reversed by this court and the cause was remanded for further proceeding. After the mandate of this court went down, and shortly before the trial was to be entered upon, the defendants asked for leave to amend their answer, and they.tendered, first, an answer which not only alleged contributory negligence on the part of the plaintiff’s intestate, but also repeated the allegations which this court had held to be insufficient as a defense respecting the appointment and qualification of the administrator. Leave to file the same was refused by the court. Then apparently recognizing the impropriety of an answer repeating a defense which this court had held to be insufficient, the defendants asked leave to file another answer pleading contributory negligence and omitting the allegations with respect to the want of qualification of the administrator. Leave to file this was also refused. This refusal was said to be justified, if not required, by a rule of the superior court, that amendments shall not be permitted after a case is called for trial. The cause then proceeded to trial upon the original pleadings. The plaintiffs case, as made by the evidence was, in substance, that his intestate, at the time of his death, was twenty-one years of age, unmarried; that upon the day when he received his injury he was directed to climb the pole in question for the purpose of restoring to its position a wire of the telephone company whose employe he was, which wire had been displaced by a falling limb, and that while carrying out that order in his own way, when he reached the proper height upon the pole he abandoned the stirrups provided for that purpose and stood upon the guy wire, and thus standing attempted by means of a hand rope attached to the detached telephone wire to throw that about the electric lig'ht wire and draw it over into' place; that in doing so the guy wire being attached to the pole so as to be in contact, with the metallic blade, which was connected with a truss rod to add stability to the pole, and his hand touching an electric light wire charged with a heavy current at the point where the insulation was defective, although the defect was not apparent, he established a connection which carried the fatal current through his body. Upon the trial a witness called to establish the earning capacity of the decedent, was permitted, among other things, to produce three envelopes which were assumed to be pay envelopes. They were not identified as such, otherwise than by testimony showing that they had been found in the house where the decedent lived with his parents, and by the endorsement thereon which were upon each, “Mr. Archdeacon”' and upon one “Pay $29.40,” upon another “Pay
    “24.75.”
    $28.80,” and upon the third “ 6. .” Another
    “18.75.”
    witness was permitted to testify, over the objection of the plaintiff in error that one ascending the pole upon a mission such as that in which the decedent was engaged, would naturally stand upon the guy wire instead of the stirrups. He was also permitted to testify that although he was a lineman, he had never known a guy wire to be so attached, nor had he ever known an. accident to result from standing on such wire. Upon the conclusion of the plaintiff’s evidence, the plaintiff in error asked the court to direct a verdict in its favor. That request was denied. It thereupon called as a witness in its behalf, the foreman of the telephone company who was present at the time of the injury to Archdeacon, who testified that addressing Archdeacon and one Cook generally, he directed them, or one of them to replace the detached wire. Archdeacon thereupon ascended the pole to determine the manner in which it should be done, and ascended it twice before the ascent upon which he received his fatal injury; that no direction was given to Archdeacon whatever as to the manner in which he should restore the wire to its place, but that was left to his own discretion and experience. At the conclusion of the testimony of this witness, the plaintiff in error again asked the court to direct a verdict in its favor, and its request was denied. Thereupon numerous requests or instructions were made by the defendant. Among them were the following, all of which were refused.
    v.
    “If you find from the evidence that the defendants Were guilty of negligence, still the plaintiff can not recover unlesss the negligence was the direct and proximate cause of the accident.
    VII.
    “Although you should find that the defendants, or either of them, were guilty of negligence, still neither of said defendants would be liable in this action unless that negligence was the direct and proximate cause of the injuries complained of. If you find that the direct cause of the accident was not the negligence of said defendants, but that the act of the deceased, John Archdeacon, either in standing upon a grounded guy wire, or in failing to observe that said guy wire was grounded, or in the method in which he passed the hand line he carried over the electric wires of The Cincinnati Gas & Electric Company, or in any other particular, was the direct cause of the injuries received, then your verdict must be for the defendants.
    XVII.
    “If you find the deceased, John Archdeacon, did not use ordinary care at the time of the injuries complained of, such as a man employed as a lineman and skilled as such would have used under similar circumstances, and such want of prudence and care directly caused the injuries, then your verdict must be for the defendants.
    XIII.
    “If you find that the method used by the deceased, John Archdeacon, to-carry up the hand-line and replace the broken telephone wire was dangerous and unsafe, ánd that it was known to him to be so, and that there was another and a safer manner in which the same end could have been accomplished, then I charge you that the deceased, John Archdeacon, adopted the more hazardous metho.d of’ doing the work at his peril, and that there can be no recovery in this action. Your verdict should then be for the defendants.
    IX.
    “If you find from the plaintiffs testimony in this case that the deceased, John Archdeacon, did not use ordinary care at the time of the injuries complained of, such as a man employed as a lineman and skilled as such would have used under like circumstances, and that’ such want of ordinary ^ care or prudence contributed to the injuries received directly, then your verdict must be for the defendants.
    XVI.
    “If- you find from the plaintiff’s testimony in this case that the deceased, John Archdeacon, did not use ordinary care at the time of the injuries complained of, such as a man employed as a lineman and skilled as such would have used under liké circumstances, and that such want of ordinary care or prudence directly caused the injuries, then your verdict must be for the defendants.”
    The jury returned a verdict for the plaintiff and, a motion for a new trial being overruled, judgment was entered upon the verdict. That judgment was affirmed by the general term.

      Messrs. Outcalt & Hickenlooper, for plaintiff in error.
    The usual test as to whether negligence is proximate cause of an accident is said to be whether it is such that a person of ordinary intelligence should have foreseen that an accident was liable to be produced thereby. Proximate cause is, therefore, probable cause, and remote cause is improbable cause. Thompson, Commentaries on Law of Negligence, Section 50; Railroad Co. v. Kellogg, 94 U. S., 469; Dussel v. Railway Co., 8 N. P., 622, 52 Ohio St., 649; Railroad Co. v. Snyder, 55 Ohio St., 362; Cooley on Torts, 69; Railway Co. v. Bigham, 90 Tex., 223; Railway Co. v. Staley, 41 Ohio St., 118; McCauley v. Logan, 152 Pa. St., 202.
    An injury which could not have been foreseen or reasonably anticipated as the natural and probable result of an act of negligence is not actionable, because it is not the proximate cause, but either the remote cause or no cause whatever of the damage. Kreigh v. Westinghouse Co., 152 Fed. Rep., 120; Railroad Co. v. Parkinson, 56 Kans., 652; Fowlkes v. Railway. Co., 96 Va., 742; Marsh v. Paper Co., 101 Me., 489; Cole v. Loan Society,
      124 Fed. Rep, 113; Atkinson v. Transportation Có., 60 Wis, 141; Enochs v. Railway Co., 145 Ind, 635; Hoag & Alger v. Railway Co., 85 Pa. St, 293; Fox v. Borkey, 126 Pa. St, 164; Railroad Co. v. Lumber Co., 49 La. An, 1184; Poland v. Earhart, 70 la, 285; Coley v. Statesville, 121 N. Car, 301; Henderson v. Coal Co., 100 Ga, 568.
    The question of proximate cause depends upon whether the injury was a natural and probable result, that is, whether it would have been foreseen by a man of ordinary prudence and sagacity, and this in turn is a question upon which reasonable minds may and must always differ to some extent. It is therefore peculiarly within the province of the jury. The following cases have so held: Gilman v. Noyes, 57 N. H, 627; Saxton v. Bacon, 31 Vt, 54Q; Express Co. v. Risley, 179 111, 295; Bitting v. Tozvnship, 177 Pa. St, 213; Ela v. Cable Co., 71 N. H, 1; Tucker v. Draper, 62 Neb, 66; Emery v. Exposition, 56 Minn, 460; Lane v. Atlantic Works, 111 Mass, 136; Mortgage Co. v. Rees, 21 Col, 435; Railroad Co. v. Feldstein, 169 111, 141.
    A case indentical with the present one in the occurrence of the accident and in the question of law involved, is that of Huber v. Raihvay Co., 31 L. R. A, 583, 92 Wis, 636.
    The plaintiff’s negligence is the sole proximate cause wherever the defendant’s negligence, if any, has merely created a condition and stopped there, which condition is made dangerous and harmful by the plaintiff’s voluntary act, whether considered negligent or not. Elliott v. Light Co., 204 Pa. St, 568; Lindsay v. Railway Co., 114 Ga, 896; Railway Co. v. Cartledge, 116 Ga, 164; Schzvartz
      v. Shull, 45 W. Va., 413; Leeds v. Telephone Co., 178 N. Y., 118. '
    One who voluntarily exposes himself to evident risks of injury by another’s negligence can not recover against the latter for injuries resulting from such exposure. Cook v. Johnston, 58 Mich., 437; Williams v. Weidman, 135 Mich., 444; Curran v. Railway Co., 63 N. Y. Supp., 209; Bridger v. Gresham, 111 Ga.,'814.

      Mr Charles M. Cist; Mr. Edward Colston; Mr. W. A. Rinckhoff and Mr. D: T. Hackett, for defendant in error.
    Where the facts are undisputed, and where reasonable minds can draw but one conclusion from such facts, the evidence raises no issue of proximate cause to be submitted to the jury, or upon which the jury requires instruction, and it would be error to give a superfluous instruction, lest the jury should assume that the court considered that the evidence left the question in doubt. Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66; Railway Co. v. IJidtke, 69 Ohio St., 400.
    The following authorities support the proposition that the undisputed facts in this case showed that the defendant negligently caused the death and that decedent was himself free- from negligence, so that no charge on proximate cause or negligence of plaintiff was called for. Yazoo City v. Birchett, 89 Miss., 700; Horning v. Telephone Co., 186 N. Y., 552; Telephone 'Co. v. Thomas, 99 S. W. Rep., 879; Rower Co. v. Garden, 78 Fed. Rep., 74; Dwyer v. Electric Co., 46 N. Y. Supp., 874; Pozver Co. v. l^efevre, 55 S. W. Rep., 396; Electric Co. v. Rose, 214 111., 545; Telephone Co. v. Nelson, 82 Md., 311; Ennis v. Gray, 34 N. Y. Supp., 379; Griffin v. Light Co., 164 Mass., 492; Overall v. Light Co., 20 Ky. Law Rep., 759, 21 Ky. Law Rep., 886; Perham v. Electric Co., 33 Ore., 451; Reagan v. Light Co., 167 Mass., 406; McLaughlin v. Light Co., 100 Ky., 189; Anderson v. Light Co., 63 N. J. L’., 387; Mahan v. Railway Co., 189 Mass., 4; Joyce on Electric Law, Sections 663, 664, 667; Geisman v. Electric Co., 173 Mo., 654; Haynes v. Gas Co., 114 .N. Car., 203; Clements v. Light Co., 44 La. An., 695; Horne v. Power Co., 144 N. Car., 375. .
   Shauck, J.

Counsel for the opposing parties seem now to be agreed upon the proposition, that we have before us a case which calls only for the application of the law to a state of facts determined by the concurrent testimony of all of the witnesses to all the material circumstances attending the death of the intestate of the defendant in error. Counsel for the company, by their motion made at the conclusion of the plaintiff’s evidence for a directed verdict in its favor, and a renewal of that motion after the introduction of the only witness called by it, have placed themselves in a position to insist that the case presented only a question of law. Their applications for a directed verdict being denied, complying with the ruling of the court, they requested the court to give to the jury certain familiar propositions of law respecting proximate cause and contributory negligence for their guidance in determining whether the company was liable or not. These were all refused. A verdict and judgment having been rendered in favor of the original plaintiff, his counsel now insist that, although some of the instructions requested were undoubtedly sound propositions of law, their refusal does not constitute a ground for reversing the judgment, because upon the undisputed facts or, which is the same thing, upon the harmonious testimony of all the witnesses, the plaintiff was entitled to recover as a matter of law. Counsel agree that ordinarily questions of negligence, contributory negligence and proximate cause are mixed questions of law and fact to be determined by. the jury upon proper instructions, but that conform-ably to the rules laid down by this court in the Pennsylvania Company v. Rathgeb, 32 Ohio St., 66, and the Railway Company v. Liidtke, 69 Ohio St., 400, when all the material facts touching those questions are established without dispute in the testimony, the question becomes a question of law merely. This is but an application of the rule of obvious importance that the function of the jury being to determine issues of fact, when the facts are conclusively determined in a manner not affected by any error, nothing remains to be done but to apply the law to those facts, and that application' is a function of the court. And this is true at whatever stage of the progress of a case, or in whatever manner the material facts may be thus conclusively established, whether it be by the statements of counsel made for the purpose of the trial, or by the failure of the party upon whom the burden of proof rests to offer substantial evidence in favor of all the allegations which the issues require him to support, or by the concurrent testimony of all the witnesses, or by an agreed statement of facts, or by a special verdict, or by the answer of juries to interrogatories. It is subversive of the public interests and promotive of no right of either party to continue a contest before a jury when nothing is involved but the application of the law to a state of facts conclusively established. We unite with counsel for both parties in the conclusion that this is such a case. The question for determination, therefore, is, whether the facts appearing upon the trial of the case show a right to recover or not.

Some recent refinements upon the law of proximate cause and contributory negligence have expanded - judicial opinions and aided, in filling the pages of text-books, but they do not seem to make the law clearer or its application more certain. There is no occasion to doubt, that by their arrangement for the joint use of the wooden pole, upon which the decedent received his fatal injury, for the purpose of carrying their wires, each company became charged, as to that use, with the same obligations to employes of the other company as to its own, and the employes of each company became charged with the correlative duty of exercising due care for their own protection with respect to both of the companies. Could there be a recovery in the present case if the decedent had been an employe of the plaintiff in error instead of the telephone company.? According to the testimony of all the witnesses, both as to the conditions existing at the time of the fatal injury and as to the operations of the electric current, it was indispensable that four distinct acts, all alleged to be negligent, should concur. They are, that the company attached its guy wire to the pole at the point where it was in contact with a truss plate, thus grounding the guy wire; that its line wire was defectively insulated; that the'decedent placed his foot upon the guy wire instead of upon the stirrups, or steps,_ provided for that purpose, and that while in that position he brought- his hand in contact with the defectively insulated wire. If any one of these four conditions had been omitted, according to the testimony, the decedent would have received no injury. Assuming" the negligence of the company, both as to the manner of attaching the guy wire, and the maintaining of the defectively insulated line wire, would it naturally expect an injury of this character to result from those defective conditions if known to it, or if capable of being known by the exercise of ordinary care? All of these dangerous conditions were beyond the reach of the inexperienced members of the public, and where they might affect only those who were familiar with the surrounding conditions, or would be entitled to be informed respecting them if they were not so familiar. The decedent was an experienced lineman, and there is no suggestion that he needed to be informed as to the perils of his occupation.

■ The company is liable in the absence of contributory negligence for such consequences as would, in the exercise of ordinary foresight, be regarded as likely to result from ■ its negligence. In the exercise of such foresight would it have been foreseen that these conditions, inaccessible to persons not engaged in the dangerous occupation of maintaining the lines, might naturally lead to injury to those so engaged? The obvious and known purpose of guy wires is to give stability to the poles to which they are attached. The obvious and known purpose of the stirrups or steps, with which this pole was supplied, was to furnish the means of ascent and descent to those who were charged with maintaining the lines. The presence and purpose of the stirrups were obvious and. were well known to the decedent, for not only was he experienced in his employment, but he had twice ascended and descended by them but a few minutes before the ascent upon which he received his fatal injury. ■ The contact of his hand with the wire carrying the fatal current seems to have occurred fortutiously while he was attempting to pass a hand rope over it, but a like observation can not be made with respect to his position upon the guy wire. However little he may have reflected upon the consequences which might result therefrom, he assumed that position purposely and unnecessarily. If his contact with the guy wire had resulted from accident, as by the giving way of a stirrup or other chance incident to the performance of his duty, important considerations, now absent, would have been introduced into the case. In view of the considerations actually presented, can it be said that the injury to the decedent was a consequence to be. anticipated in the exercise of ordinary foresight? Furthermore, observing how closely allied are the subjects of proximate cause and contributory negligence in cases of this character, and remembering that the doctrine of comparative negligence has never been applied in this state, can it be said that the decedent exercised due care for his own safety? Neither in brief nor record can we find sufficient reason for an affirmative answer to either of these questions. They must be answered in the negative.

While the case presents an unusual state of facts, they are not, in legal aspect, without precedent. In Huber v. La Crosse City Railway Company, 92 Wis., 636, the right to recover was denied in a case depending upon the same considerations. This conclusion renders all other assignments of error immaterial, and none of them is considered. Judgment of general and special term reversed .and final judgment for plaintiff in error.

Judgment reversed.

Crew, C. J., Summers and Davis, JJ., concur.

Spear and Price, JJ., concur in'the judgment of reversal, but not in the final judgment:


author: Davis, J.

text:
    The List & Son Company v. Chase.

      Averment of contract performance by plaintiff — Error to charge jury■ — Burden of proof on defendant — Proof of same must be submitted, when — Purchaser rejects goods for assigned reason— Other reasons not stated not construed as zvaiver, when — i Law of contracts — Allegations and evidence of breach.

    1. Where a plaintiff sets forth in his petition a contract with the defendant, and avers that he has performed all of the conditions on his part, and the defendant for answer denies the allegations of the petition and alleges a contract differing in material conditions from that alleged by the plaintiff, the burden remains with the plaintiff to prove the contract and his performance as alleged in his petition; and it is error for the court to charge the jury that as to the claim made in the defendant’s answer the burden is on the defendant, and that the contract as alleged in the answer and denied in the reply must be made out by a preponderance of the evidence.
    2. Waiver of the performance of conditions in a contract by the party in whose favor the conditions are to be performed, is not performance but must be alleged as an excuse for nonperformance, before proof of such waiver can be received; and in the absence of such an allegation it is error to charge the jury that certain facts appearing in evidence constitute such a waiver. Eureka Fire & Marine Ins. Co. v. Baldivin, 62 Ohio St., 368, approved and followed.
    3. When a purchaser of goods has absolutely rejected the goods for any assigned reason, his silence as to other objections which would justify his refusal to accept, when unaccompanied by conduct which may have misled and prejudiced the ve. lor, cannot be construed as a waiver of the purchaser’s right to insist on his plea of non-performance on those grounds,
    (No. 10831
    Decided March 9, 1909.)
    Error to the Circuit Court of Morrow county.
    The defendant in error, Dart L. Chase, commenced an action in the court of common pleas of Morrow county against the plaintiff in error a corporation, alleging, in substance, that the plaintiff in error, on or about the 6th day of June, 1906, agreed to purchase from the plaintiff, 'defendant in error here, one hundred and ninety-five dozen of eggs, which were to be shipped to Cleveland, Ohio, to the defendant company, and that the plaintiff duly performed all the conditions of the contract of sale on his part, and that the defendant without cause refused to accept and pay for the said eggs or any part thereof, and that subsequently the plaintiff went to Cleveland and sold the eggs at the best price which could be obained therefor, and prays judgment for the balance. The defendant answered, in substance, that it denied each and every allegation contained in the petition of the plaintiff; and further answering said, that on or about the 6th of June, 1906, it agreed to purchase from the plaintiff about seventy-five cases of strictly fresh eggs, to be shipped not later than June 7, 1906, over the C. ,C. C. & St. L. railroad, and subject to inspection and approval by the defendant upon the arrival of said eggs at Cleveland, and if found to be of the standard purchased the defendant was to pay the plaintiff fifteen and one-half cents per dozen; that said plaintiff did not ship the eggs on the 6th day of June, 1906, but that on or about the 9th day of June, he shipped to the defendant one hundred and ninety-five cases of eggs via the Toledo & Ohio Central railway and the B. & O. railroad, and that upon arrival at Cleveland and inspection by the defendant, they were found to be not fresh and the defendant refused to accept them and immediately notified the plaintiff of its refusal; that the plaintiff authorized the defendant to sell the same for him, but on account of the bad quality of the same the defendant could not do so at the price asked by him, and thereupon at the suggestion of the defendant the plaintiff came to Cleveland and disposed of said shipment. The plaintiff in reply admitted that on the 6th of June the defendant agreed to and did purchase eggs of the plaintiff, and that on the 9th of June, 1906, the plaintiff shipped to the defendant one hundred and ninety-five cases of eggs by way of the Toledo & Ohio Central railway and the B. & O. railroad, and that the defendant- refused to accept them, and that plaintiff went to Cleveland and disposed of said shipment, but he denies each and every other allegation and statement in the answer contained. On the trial in the court of common pleas, verdict was rendered for the plaintiff, and after a motion for- a new trial which was overruled, judgment was rendered upon the verdict, which judgment was affirmed by the circuit court, and The List 6 Son Company now seeks to reverse the judgments of the circuit, court and court of common pleas.

      Messrs. Bemis & Calfee, for plaintiff in error.
    A party will not be held to have waived a material term of a contract, unless he intends and consents to do so. Express Co. v. Express Co., 7 Dec. R, 51; Insurance Co. v. Gierl, 9 O. C. D, 162; Bates, Flavens & Co. v. Benninger, 13 Dec. Re, 1073.
    It can be readily seen that the result of the ruling of the court below would be to practically deprive a man of his right of inspection, for such right of inspection would be of very little value, if by its exercise, a party should be held to lose by waiver, all the rest of his rights under the contract.
    If the contract be, as plaintiff contends, for a carload, the defendant was not bound to accept a lesser number of eggs than the contract called for. Mechem on Sales, 1161; Perry v. Iron Co., 16 R. I, 318; Hill v. Heller, 27 Hun, 416; Hart v. Mills, 15 Mees & Weis, 85; Elsas v. Meyer & Co., 10 Dec. Re, 518.

      Regardless, whether or not plaintiff in error as a matter of fact, waived any of his rights in this contract; that question was not in issue. The court erred, therefore, by directing the jury to consider that point. Mehurin & Son v. Stone, 37 Ohio St., 49.
    Where a party avers that he has performed all the conditions of a contract to be by him performed, his proofs upon the trial must show such performance in order to entitle him to a recovery. Under such an averment it is not competent to prove a waiver of such conditions. If the waiver of conditions is relied upon, such waiver must be averred in the pleadings. Insurance Co. v. Baldwin, 62 Ohio St., 368; Insurance Co. v. Campbell & Talbot, 42 Neb., 208; Anders v. Insurance Co., 62 Neb., 585; Gillett v. Insurance Co., 53 Kans., 108; Hannan v. Greenfield, 36 Ore., 97; Building Assn. v. Insurance Co., 29 Ore., 569; Lumbert & Co. v. Palmer, 29 la., 104; Closz & Mickelson v. Miracle, 103 la., 198; Heusinkveld v. Insurance Co., 95 la., 504, 96 la., 224.
    The circuit court below in its opinion seemed to base its decision on the ground that plaintiff in error objected to the eggs solely on the ground of quality using the words “eggs won’t stand inspection,” and that by assigning a specific ground of rejection it waived the right to reply on other grounds, i. e., quantity and route.
    To rebut that theory of the circuit court, however, it is only necessary to cite the following: Levy v. Green, 1 Ellis & Ellis, 968; Bryant v. Thesing, 46 Neb., 244; O’Donohue v. Legett, 55 Hun, 607, 134 N. Y, 40.

      Messrs. Harlan & Wood, for defendant in error.
    There could be no prejudicial error in the charge of the court as to waiver, as the court had the perfect right to order the pleadings to be amended to conform to the proof. Mehurin & Son v. Stone, 37 Ohio St., 58; Accident Assn. v. Harrington, 10 C. C., "N. S., 134; Insurance Co. v. Penn, 5 N. P., N. S., 547.
    Where a variance between the allegations of the pleading and proof is not material within the meaning of Section 131 of the code, the fact that the pleading was not amended to conform to the proof, as provided for by Section 132, will not constitute ground for the reversal of the judgment on error. Sibila v. Bahney, 34 Ohio St., 399; Insurance Co. v. Baldwin, 17 C. C., 143.
    In support of the proposition that the court had the right to submit the case to the jury upon the evidence introduced, notwithstanding the state of the pleadings, we cite the following authorities: Brockway v. lezvell, 52 Ohio St., 197; Mehurin & Son v. Stone, 37 Ohio St., 58.
   Davis, J.

The plaintiff alleges that the defendant entered into a certain agreement for the purchase of eggs. He alleges that he has performed all of the conditions of the contract to be performed on his part. The defendant by a general denial disputes both of these allegations and thereby imposes on the plaintiff the burden of proving the contract as alleged and substantial performance thereof on his part. But the defendant admits that it entered into an agreement to purchase eggs from the plaintiff, which however differs from the plaintiff’s version of the agreement in quantity, quality and route of shipment. The statement in the answer, of the facts as claimed by the defendant, does not constitute a distinct or affirmative defense, nor is it. a confession and avoidance. It is in effect a denial in particular of the contract and performance alleged in the petition; so that the burden of proof nevertheless remains with the plaintiff, as already stated, and it is not changed by the reply, which really adds nothing to the issues already made by the petition and answer, except the admission that the eggs were not shipped by the route by.which the defendant claims that the plaintiff agreed to ship them, but were shipped by what appears to have been an indirect and longer route.

Upon the trial in the court of common pleas, when instructing the jury and after stating the defendant’s claim, the court said: “As to this claim, the burden is on the defendant, and it must be . made out by a preponderance of the evidence, as it is denied by the reply. This claim of defendant assumes the same relation affirmatively, as the claim of the plaintiff.” For the reasons already stated this instruction to the jury was erroneous. 9 Cyc., 735, n. 91 and 92; Sorenson v. Townsend, 77 Neb., 499; Fudge v. Marquell, 164 Ind., 447, 455; 1 Ency. Pl. & Prac., 818; Mehurin v. Stone, 37 Ohio St., 49; Brewing Co. v. Schultz & Hall, 68 Ohio St., 407. If the evidence for the plaintiff’s claim is not sufficient to overcome the defendant’s denial and the evidence to support it, the jury are not authorized to find a verdict for the plaintiff. The importance of a correct application of these principles is apparent, since it appears from the record that the only evidence to support the plaintiff’s version of the contract was the testimony of the plaintiff himself and the only evidence to support the defendant’s claim as to the quantity and quality of eggs to be delivered and the route over which the)' were to be shipped was the testimony of the defendant’s agent who negotiated for the purchase.

In submitting the case to the jury the court swept aside all questions as to the quantity purchased and as to the route by which the eggs were to be shipped, as follows: “If you find that defendant after the bill of lading was sent and received, showing by what railroad route the eggs were shipped, and also the bill of eggs showing the number of cases, and made no objection on that account until after an inspection of the eggs, the defendant would waive any question as to the number of cases, as well as the railroad route by which they were to be shipped.”

A waiver is a voluntary relinquishment of a known right. It may be made by express words or by conduct which renders impossible a performance by the other party, or which seems to dispense with complete performance at a time when the obligor might fully perform. Mere silence will not amount to waiver where one is not bound to speak. In this case the goods were perishable and exceedingly liable to be damaged by heat. The shipment was in the month of June and therefore the shortest and speediest route was a material condition. It is true that if the contract bound the plaintiff to ship by such a route, the defendant might have rescinded the contract on receiving the bill of lading showing a shipment on another and more hazardous route; but he was not bound to do so then. He might wait until inspection because inspection might show that the goods were not damaged, and he could then accept them or if damaged reject them. The purchaser therefore waived no right by waiting and the seller lost none, because the latter had already made a breach of his contract and could not remedy it/ The same was true as to the quantity of eggs purchased. The purchaser was at liberty to accept all the eggs shipped to it, although in excess of the amount which it agreed to buy, or it might have accepted out of the excessive shipment the quantity which it agreed to buy; but it was not bound to do either. Mechem on Sales Section 1157-1161, and when it rejected the whole shipment it did not put the plaintiff in any worse position, for upon the hypothesis that the contract was as defendant claims, the plaintiff had already failed to perform his part of the contract.

The theory of plaintiff’s counsel and of the courts below, that because in a telegram to plaintiff the defendant assigned only one ground for refusal to accept, viz., that the eggs “did not stand inspection,” it waived all other grounds it might have, is not tenable. We do not deny that under some circumstances a refusal to accept goods for a stated reason may operate as a waiver of other objections, which might have been properly made. This may be so in cases where the silence of the purchaser and his conduct operate to mislead the seller and prevent him from protecting himself, in other words, where the conduct of the buyer' would raise an estoppel against him. See Johnson v. Oppenheim, 55 N. Y., 280, 291; Smith v. Pettee, 70 N. Y., 13, 16-17. But when the buyer has absolutely rejected the goods, for whatever reason, his silence as to other objections which would justify his refusal to accept, when unaccompanied by conduct which may have misled and prejudiced the vendor, can not be construed as a waiver of the buyer’s right to insist on his plea of nonperformance on those grounds. The reason which underlies this proposition is that a waiver must be voluntary, that is intentional, with knowledge of the facts and of the party’s rights, or it must be implied from conduct which amounts to estoppel. Therefore, since it does not appear in this case that the defendant, when it notified the plaintiff that it refused to accept the eggs for-inferior quality, intended to waive objections as to quantity and change of route; or. that the failure to notify plaintiff of those objections in any material way misled or prejudiced the plaintiff, a waiver of such objections can not be implied.

Moreover, the plaintiff stands upon his averment that he has performed all the conditions precedent on his part. If he would show a waiver of conditions he must aver it as an excuse for nonperformance of such conditions. Eureka Fire & Marine Ins. Co. v. Baldwin, 62 Ohio St., 368. The court went outside of the issues to tell the jury that non-performance of certain conditions was waived. This was an error and it could not be corrected, as suggested by counsel, by amending the petition to conform to the facts proved, because the facts proved do not constitute a waiver.

The judgments of the circuit court and the court of common pleas are

Reversed.

Crew, C. J., Summers, Spear, Shauck and Price, JJ., concur.