
    No. 11268.
    Elliott v. American Tin Plate Co.
    Decided June 21, 1910.
    Error to Circuit Court of Trumbull county.
    
      Mr. Charles Fillius, for plaintiff in error.
    
      Mr. T. FI. Gillmer and Messrs. Seaton & Paine, for defendant in error.
   Judgments reversed and cause remanded for a new trial. Grounds stated in journal entry.

This cause came on to be heard upon . the transcript of the record of the circuit court of Trumbull county, and was argued by counsel. On consideration whereof this court finds that the undisputed evidence given at the trial of the case below in the court of common pleas of Trumbull county tended to show that the appliance known as a channel beam with which the plaintiff was working at the time of the accident was an unsafe appliance in that the ends of said beam were not securely fastened in their connection with the stirrups attached to the iron rods by which they were supported; that the evidence also tended to show that said defect was one 'of original construction, the defect being disclosed by use but not otherwise manifest to the intelligence of the ordinary workman; that the evidence further tended to show that some time prior to the accident to the plaintiff appliances in the same mill similar to the one which caused the injury to plaintiff had fallen while being used in a way to indicate improper and negligent construction, and that such fact was at the time well known to the company but unknown to the plaintiff.

The court further finds that there is no evidence in the record tending to show that the plaintiff was in any way guilty of contributory negligence.

This court is of opinion that the case made by the plaintiff at the trial was of such a character as to require its proper submission to the jury and that it was error for the trial court to direct a verdict for defendant.

This court is also of opinion that the risk incurred in the use of the channel beam was not of a character which should be conclusively held to have been assumed by the plaintiff, the facts of the case not. bringing it within the spirit of the rule announced in Pennsylvania Co. v. McCurdy, 66 Ohio St., 118, but more nearly resembling the principle on which rests the ruling in Manufacturing Co. v. Morrissey, 40 Ohio St., 148, and which is also recognized in the opinion in Coal & Car Co. v. Norman, 49 Ohio St., 598.

It is therefore considered and adjudged that the judgment of the circuit court be and the same is hereby reversed for error in affirming and in not reversing the judgment of the court of common jaleas. And proceeding to render the judgment said circuit court should have rendered, it is considered and adjudged that the judgment of the court of common pleas be reversed for error in directing a verdict for the defendant. And this cause is remanded to said court of common pleas for further proceedings according to law.

It is further considered and adjudged that plaintiff in error recover of' defendant in error his costs in this- court and in the circuit court to be taxed. It is further ordered that a special mandate be sent to the court of common -pleas of Trumbull county to carry this judgment into execution. Also that a copy of this entry be certified to the clerk of the circuit court of Trumbull county for entry.

Summers, C. J., Spear, Si-iauck and Price, JJ., concur.'  