
    Henry, Admx., v. The Peck, Hannaford & Peck Co.
    
      (Decided January 13, 1930.)
    
      Messrs. Le Blond, Morrissey, Terry é Oilday, for plaintiff in error.
    
      Messrs. Pogue, Hoffheimer & Pogue, Mr. J. A. Culbertson, and Mr. Jackson W. Sparrow, for defendant in error.
   Hamilton, J.

Plaintiff in error, Alice C. Henry, administratrix, brought suit in the court of common pleas against the defendant in error to recover damages for the wrongful death of her husband, Archie Henry.

It appears from the record that the plaintiff’s decedent, Archie Henry, was employed by the Otis Elevator Company in installing elevators in the Cino Theater Building, in Cincinnati, Ohio. On March 7, 1927, while the deceased, together with two other employees of the elevator company, was working in the elevator pit in the basement of the building, a section of iron pipe dropped down the elevator shaft, striking the deceased on the head, causing injuries which resulted in his death the following day.

The contract for the heating and ventilating of the building was let to the defendant, the Peck, Hannaford & Peek Company, and at the time of the accident the company was engaged in that \york.

' The petition was grounded on negligence in permitting the section of iron pipe to drop down the elevator shaft, and invoked the doctrine of res ipsa loquitur.

The answer was a general denial.

At the close of the plaintiff’s evidence, the defendant moved for an instructed verdict, which motion was granted by the trial court, and judgment for the defense was entered on that verdict, so instructed. From that judgment, the plaintiff prosecuted error to this court.

The claim of the plaintiff is that the facts adduced were sufficient to justify the case going to the jury under the res ipsa loquitur doctrine; that there was sufficient evidence from which the jury might infer negligence on the part of the defendant.

The trial court in granting the motion stated that there was no evidence to show that the pipe which caused the death of the decedent was owned and controlled by the defendant, or that its falling was due to any act of the defendant.

Under the doctrine of res ipsa loquitur, if there is any evidence from which the jury might infer negligence on the part of the defendant, then the case should have gone to the jury.

The rule of res ipsa loquitur is stated in Shearman and Redfield on Negligence, volume 1 (6th Ed.), Section 59, as follows:

“When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does riot happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care. ’ ’

See, also, 20 Ruling Case Law, 191, par. 158.

It is in the record, and it is argued, that there were many other .subcontractors at work in the building, such as plumbers, carpenters, etc. It is claimed that in so far as the evidence is concerned the pipe might have been dropped by agents of other of the contractors, or that it might have been dislodged by employees of other contractors; that there is no evidence to show that the defendant company had anything to do with, or control over, the pipe at the time.

The record trends to show that the defendant company through its employees was engaged in the installation of the heating system in the building; that in the prosecution of this work it used iron pipe of the kind which caused the death of the deceased; that on the day preceding the accident the company was engaged in this work on the sixth floor of the building; and that on the day of the accident it moved its equipment to the seventh floor, and placed its work bench on the seventh floor within six feet of the elevator shaft.

There is evidence tending to show that none of the other contractors used pipe of the character of that which caused the death of the deceased.

The evidence disclosed that on the work bench, and attached thereto, was a vise for use in cutting pipe, and threads thereon for connections; that the employees of the defendant were working there on the day of the accident; that on the end of the pipe was fresh red lead, which was applied to the sections for making connections; that the cap on the head of the deceased, picked up immediately after the accident, had fresh red lead thereon; that the section of the pipe which fell and struck the deceased was of the kind used in steam heating; and that there were pipes lying around the bench.

We are of opinion that these facts would justify an inference that the employees of the defendant company were responsible for the falling of the pipe which caused the decedent’s death, and would call for some explanation on the part of the defendant company.

It is suggested in the brief of the defendant in error that it was entitled to an instructed verdict on the ground that a suit growing out of the same accident was prosecuted in the court of common pleas of Hamilton county by the plaintiff against Robert Fuerst, and that a settlement was made in that case for the tortious act, and that this settlement barred plaintiff from further prosecution of her claim in this case. It is stated in the brief that this bar was pleaded in the second defense of the answer, and therefore the plaintiff would be required to show that a settlement made in the suit against Fuerst was not a settlement in full, and was not so considered, and not so received, or made as such.

It is the law that settlement with one joint tortfeasor in full compensation releases all other joint tort-feasors. In such a situation, the plaintiff may show that such settlement was not intended and received as a full settlement, and might proceed to judgment, and any judgment recovered would be reduced by the amount of the settlement in the case.

We have examined the record, and, as stated in the outset of this opinion, the answer was but a general denial. A settlement was not pleaded, and the only place it appears in the record is where counsel for the defendant interrogated thé plaintiff, while she was on the witness stand, regarding a suit filed against Robert Fuerst, and settlement therefor. This interrogation can have no binding effect, since it was not made an issue in the case. We fail to find in the record any amendment or pleading to conform to the proof, or any stipulation regarding such an issue. There being no such issue in the case, the judgment cannot be sustained on account of a bar by virtue of another settlement.

The judgment will be reversed, and the cause remanded for a new trial and further proceedings according to law.

Judgment reversed and cause remanded.

Cushing, P. J., and Ross, J., concur.  