
    MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    March 25, 1907].
    Winch, Marvin and Henry, JJ.
    
      Cleveland Steel Castings Co. v. Antoni Lewandowski.
    Necessity of Proving Master’s Knowledge of Dangerous Condition of Work and Servant’s Absence of Such Knowledge.
    When a servant’s action for damages for injuries is predicated upon the dangerous condition of the place where he was working, he can not maintain his action without introducing some evidence tending to prove that the master had knowledge of the condition and that he did not.
    Error.
    
      
       Affirmed, no op., Lewandowski v. Cleveland Steel Castings Co., 80 Ohio St. 704.
    
   WINCH, J.

Lewandowski was employed by the eastings company as a molder and was at work in its foundry on the night of January 24, 1905, when a large pile of flasks or forms, weighing about two hundred pounds each, near which he was working toppled over and one of the flasks fell upon his leg and broke it. He brought his action against the company claiming that his injury was due to its negligence, and alleging that the foreman of the company had directed the flasks to be placed in his vicinity and had carelessly and negligently ordered them to be placed on a thick layer of sand, several feet in depth, which was wholly insecure and unsafe, in such manner as to render them liable to topple over and injure him; that by reason of the weight of said forms the sand was caused to give away beneath them; that he had no knowledge or notice of the insecure and unsafe condition of the layer of sand upon which the forms rested, or that they were liable to topple over upon him. The petition also shows that Lewandowski had been in the employ of the company, as a molder, for several months prior to the accident.

At the trial, upon the close of plaintiff’s evidence, the defendant moved that a verdict be directed in its favor.

This motion being overruled, the defendant introduced no further evidence and the case went to the jury, which brought in a verdict for the plaintiff in the sum of $1,500. Motion for a new trial being overruled, the ease is here on error, with bill of exceptions showing all the evidence, the sole allegation of error relied upon being that the verdict was not warranted by the evidence.

We find this claim well made.

While the plaintiff below, by his petition, brought himself within the rule laid down in Chicago & O. Coal & Car Co. v. Norman, 49 Ohio St. 598, he failed to prove that he had no knowledge of the insecure manner in which the flasks wefe piled, and he failed to show that having such knowledge, he informed his master, and continued in its employment upon a promise, express or implied, to remedy the manner in which the flasks were piled.

This is not the full extent of what Lewandowski failed to show. There is no evidence in the bill of exceptions that the flasks were piled this night under any orders of the foreman, that they were piled insecurely; that the company knew that they were piled insecurely; or that Lewandowski did not know they were so piled.

On the other hand, the evidence shows that the flasks were piled this night by his fellow employes, without any special orders from the foreman, in the manner they had always been piled; the plaintiff was working so near to them, that, skilled workman as he was, he must have known just how they were piled; the objects were large and the pile open, to his observation. The nature of the sand foundation was as well known to the plaintiff as to anybody, and further, he failed to show that this sand foundation was insecure.

The plaintiff’s own witnesses suggest another more probable cause for the accident and one which would not render the company liable. It appears that this molder’s own helper dug down in the sand close to the pile, probably for the very purpose of causing the flash to slide down so that he would not have to lift them or carry them so far, and that this act of his helper undermined the pile and caused it to fall. Such being the conflicting nature of the evidence, under the rule laid down in Railroad Co. v. Andrews, 58 Ohio St. 426 [51 N. E. 26], the matter should not have been submitted to the jury for it to guess upon. Because the verdict is not sustained by the evidence and for error in overruling the defendant’s motion to direct a verdict in its favor, the judgment is reversed.  