
    PAINTER. INJURED BY BREAKING OF A LADDER.
    Common Pleas Court of Greene County.
    Guy L. Harner v. Charles S. Johnson.
    Decided, March, 1917.
    
      Negligence — A Ladder is a Simple Tool — Action for Injuries Due tú the Breaking of — Not Within the Employer’s Liability Act.
    
    1. An action for damage hy an employee for an injury occasioned hy the breaking of a ladder furnished hy the employer does not come within the employer’s liability act, for the reason that a ladder is a simple tool and the employer has the right of the defense of assumed risk and contributory negligence.
    2. The employee having equal or greater opportunity to learn of any defects in a ladder used by him is chargeable with knowledge, and being a simple tool assumes the risk in the use of the same.
    
      L. J. Lehman and W. S. Rhotehamel, for plaintiff.
    
      M. Shoup, contra.
   Kyle, J.

This cause is submitted to the court upon a demurrer to the amended petition on the ground that it does not state a good cause of action against the defendant.

This action is brought under the employers’ liability act.

The plaintiff claims that the defendant employed five workmen, or more, regularly in the same business, and did not pay the state insurance fund, as provided by law, and that he was employed by tbe defendant to paint a certain chimney, and in performing the work the ladder broke and he was injured.

The first question presented is whether or not injury from the breaking of a ladder comes within the statute.

Section 6243 provides—

“that if the employee of such employer shall receive any personal injury by reason of any defect or unsafe condition in any ways * * * appliances or tools, except simple tools, in any way connected with or in any way used in the business of the employer, such employer shall be deemed to have knowledge of such defect,” etc.

In Section 6243 the defective or unsafe condition relates to “appliances or tools, except simple tools.”

In 96 Wisconsin, page 409, the court says:

“A ladder is one of the most simple contrivances in general use. ’ ’

In 127 Missouri, 566, is a case where, the servant had been injured in the use of a ladder, and the court says:

“The appliance (the ladder) in question was a simple one.”

106 New York, page 518:

“A ladder, like a spade or hoe, is an implement of simple structure, presenting no complicated question of power, motion or construction, and intelligible in all of its parts to the dullest intellect.” ,

28 Rhode Island, page 257:

“A ladder is to be classed with ordinary hand tools.”

7 N.P.(N.S.), 489 on 497; 19 Ohio Decisions, page 70, in commenting upon the 40 Ohio State, says:

“The injury in that ease was caused by a machine and not by a simple appliance like a ladder.”

From the foregoing authorities I am of the opinion that a ladder is a simple tool, and being a simple tool does not come within the provisions under Sections 6243 and 6245, et sequiter.

If it does not come within the employers’ liability act there can be no question of assumption of risk, and the defendant can not be deprived of his defense of contributory negligence.

In the use of simple tools, to which class the ladder belongs, an employee using the same is equally chargeable with the master with knowledge of its obvious imperfections. (28 Rhode Island, 257.)

No reason can be perceived why the plaintiff, brought into daily contact with the tools used by him, should not be held chargeable equally with the defendant with knowledge of their imperfections. (101 N. Y., 396; 106 N. Y., 518.)

The plaintiff .in this case is seeking to charge the defendant with negligence for not discovering the rotten condition of the double-section extension ladder which broke, which the plaintiff, with superior means of observation, claims and alleges that “he could not by an inspection of said ladder have discovered the rotten condition of said part of said double-section extension ladder which broke. ’ ’

The rule is stated in 98 Wisconsin, page 409, to be:

“Whether a tool is defective so as to render the person responsible for its reasonable safety for use liable to damages to an employee injured by some failure of duty in that regard must be determined in the light of all the circumstances bearing on the question, and particularly the right of such person to rely on the duty of such employee to use ordinary care for his own safety.”

In this case the plaintiff says that one part of the double-section extension ladder was resting upon the eaves, and adjoining to and close to the chimney which the plaintiff was painting, and says:

“It was necessary for him to step upon and stand upon the rung of said double-section extension ladder immediately- above the eaves of said house, and when said plaintiff, without any fault or negligence on his part, stepped upon the rung of said double-section extension ladder the left side of said double-section extension ladder * * * broke.”

The matter of placing the ladder was entirely with the plaintiff, and the manner in which he alleges that he used the ladder raises a presumption that the plaintiff was guilty of contributory negligence.

The plaintiff does not allege anywhere in his petition that the ladder was rotten. Pie alleges that he could not by inspection have discovered the rotten condition; but says the defendant knew, or by the exercise of ordinary care could have known, the decayed and rotten condition of said ladder. It would necessarily be true that unless the ladder was in a rotten condition it could not be discovered by the plaintiff by inspection, neither could it be discovered by the defendant, and in the absence of any allegation that it was rotten or in a rotten condition the court could not assume that it was by reason of the fact that the plaintiff says that the' defendant could have discovered it if he had examined the same, for you could not discover a condition that did not exist, and in the absence of an averment to that effect such condition could not be presumed to exist.

The plaintiff avers that he did not know of the defect, but does not say that he had not equal means of knowing with his employer. (49 Ohio State, 607.)

In order to make out his case it would be necessary for the plaintiff to prove that the ladder was in a rotten condition and defective, bnt in the absence of any averment to that effect he could not make proof, and, therefore, his petition must fail.

It is my opinion, therefore, that this cause of action does not come ydthin the employers’ liability act by reason of a ladder being a simple tool, and the defendant has the right of defense of assumed risk and contributory negligence on the part of the plaintiff. The plaintiff having equal and greater opportunity to learn of any defects in the ladder is chargeable with knowledge, and being a simple tool assumes the risk in the use of the same.

The manner of placing the ladder against the building was entirely the act of the plaintiff, and upon the face of the petition it would also seem that his manner of use in climbing above the'eaves of the house and resting upon the rung raises a presumption of contributory negligence which is not overcome by any other allegation in the petition. For" the foregoing reasons I think the demurrer to the amended petition should be sustained.  