
    WOODMAN v. STAHL.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1915.
    Decided Jan. 9, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    111. ASSUMPTION — of Risk — 829. Negligence.
    1. Employe, in continuing use of simple tool after promise by employer to repair same, assumes risk and cannot recover.
    2. Word “tool” held to include reins with which horse is guided.
    677. JUDGMENTS AND DECREES — Court •of Appeals cannot render final judgment in favoy of plaintiff in error where trial court was not asked to pass upon sufficiency of petition or evidence.
    Error to Common Pleas.
    Judgment reversed.
    Deeds & Cole, Toledo, for Woodman.
    John E. Steele and W. H. MeLellen, Jr., for Stahl.
   PULL TEXT.

RICHARDS, J.

Charles H. Stahl was the plaintiff in the Court of Common Pleas in an action to recover damages for personal injuries and the trial resulted in a verdict and judgment in his favor for $500.00.

It is urged that the judgment should be reversed for numerous errors claimed to have been committed at the trial, among which, are the claim that the petition fails to state a cause of action and that the plainiff in the trial court assumed the risk. The petition avers in substance that the plaintiff was employed by Albert B. Woodman to care for his peach orchard on Catawba Island, and in the performance of that work was supplied with a horse and wagon with which to haul the peaches. He avers that about October 4, 1925, while he was using the horse, the right line of the harness broke and plaintiff ran to the head of the horse to catch the bridle and the horse stepped upon him and struck him, resulting in his injury. He further avers that he was using the harness which had been designated by the defendant and had informed the defendant shortly before October 4, 1925, that the -horse was hard-bitted and the harness was old, rotten and weak and the lines not strong enough to control the horse, and requested the defendant to have -the harness, and especially the lines, repaired, and he avers that the defendant promised to replace the harness and lines in a shoi't time and told plaintiff that until he could replace them he should continue to use ■them.

Plaintiff avers that the defendant did not regularly employ more than one person and had not complied with the laws of Ohio providing for compensation of employes injured in the course of their employment..

Counsel for plaintiff in error insist that the defective harness and lines or reins, and the promise to repair, bring the case within the principle announced in McGill v. The Cleveland & Southwestern Traction Co., 79 Ohio St., 203, commonly known as the stepladder case. In that case it was held that an employe, in continuing the use of a simple tool, after a promise by the employer to repair -the same, assumed the risk and could not recover. The case cited collects the authorities and gives the reasons for the rule under which an employe assumes the risk of injury in case of a promise to remedy a defect in a simple tool or appliance. In that case the court cite with approval Meador v. Lake Shore & Michigan Southern Railway Co., 138 Indiana, 290, in which it was held that a common laborer who uses agricultural implements to which he is accustomed and in regard to which he has complete knowledge, in working upon a farm, is not entitled to recover for injuries suffered after making complaint to the employer that the implement or utensil is defective, and is injured by continuing his work after a prómise of the employer to' repair the defect. The word “tool” has a very broad meaning and has been defined as any instrument or apparatus necessary to a person in the efficient prosecution of his trade or calling, and within that definition the reins with which a horse is guided may well be an apparatus or appliance.

G. C. Section 6245 excepts simple tools as being implements or apparatus in the use of which the employe assumes the risk, and is not permitted to recover. Clearly the petition does not state a cause of action and it is apparent that the plaintiff assumed the risk of his own injury.

No demurrer was filed to the petition and no objection was made at the opening of the trial to the introduction of any evidence and no motion was made at the conclusion of all of the evidence to direct a verdict for the defendant, nor was the trial judge requested to instruct the jury to return a verdict for the defendant. It is true that a motion to direct the jury to return a verdict in favor of the defendant was made at the conclusion of the evidence offered on behalf of the plaintiff, but that motion was not renewed at the close of all the evidence and therefore must be deemed to have been waived.

Cincinnati Traction Co. v. Durack, Admr., 78 Ohio St., 243;

Zanesville v. Stotts, 88 Ohio St., 557;

Youngstown & Suburban Railway Co. v. Faulk, 114 Ohio St., 572, 578:

We call attention to Hogan v. Baltimore & Ohio Railroad Co., 1g Fed. (26) 739.

While it is necessary to reverse the judgment in this case because the petition fails to state a cause of action and because the plaintiff assumed the risk of his injury in continuing the use of the defective harness, known to him to be such, yet we are unable to render a final judgment in favor of the plaintiff in error because the trial court was not asked to pass upon the sufficiency of the petition or the evidence.

The judgment will be reversed and the cause remanded for further proceedings.

(Williams and Lloyd, JJ., concur.)  