
    LIABILITY OF EMPLOYERS FOR. WRONGFUL DEATH.
    Common Pleas Court of Montgomery County.
    David S. Clark’s Administrator v. The Stillwell-Bierce & Smith-Vaile Co. 
    
    Decided, July 1, 1905.
    
      Wrongful Death — Actions under Sections 6134 and 6135 for Recovery of Damages — Application of 95 O. L., 598 — Duty of Employer to Properly Inspect Appliances — Not Necessary to Show Lack of Knowledge on the Part of the Decedent — What must he Shown on Behalf of the One Injured — Evidence.
    The provisions of 95 O. L., 114, relating to the liability of employers for injury or wrongful death of employes, supplants the doctrine enunciated in Goal Go. v. Norman, 49 O. S., 598, and gives to an employe who was in the exercise of due care and diligence at the time of the accident a right of action, where his injuries resulted from defective machinery or appliances which had not been inspected with proper care and diligence.
    John J. Hoover and Charles W. Kumler, for -plaintiff in error, contended:
    1. Iiouse Bill 31 in 95 O. L., 114, states the elements of a ease like this, and supersedes the elements in Coal & Car Company v. Norman, 49 O. S., on page 607.
    2. The elements necessary to make a prima facie, ease are:
    
      (а) Any defect in the condition of the machinery or appliances connected with or used in the business of the employer.
    (б) That the defect arose from, or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer, entrusted by him with the duty of inspection, repair, or of seeing that the machinery or appliances were in proper condition.
    
      (c) That the employe was in the exercise of due care and diligence at the time.
    
      3. Proof in the testimony is shown of all of said elements, sufficient to carry the case to the jury.
    4. Where testimony is conflicting, facts uncertain, proper inference doubtful, or question depends on a variety of circumstances from which different minds would draw different conclusions, or if there is evidence tending to show defendant’s negligence and the inference of plaintiff’s negligence is doubtful, are matters for a jury. C., C. & C. R. R. v. Crawford, 24 O. S., 631; Cincinnati St. R. R. Co. v. Meyer, 11 B., 321; Marietta & Cin. R. R. v. Picksley, 24 O. S., 654; Railway v. Murphy, 50 O. S., 135; Kelley v. Howell, 41 O. S., 438.
    5. Custom may be used to prove due and proper care. Carl v. Pierce, Receiver, etc., 20 C. C., 68; L. S. & M. S. Ry. Co. v. Andrews, Admr., 14 C. C., 577; L. S. & M. S. Ry. Co. v. Schultz, Admx., 19 C. C., 659; 14 C. C., 261, 262, 263.
    6. The Stillwell-Bieree & Smith-Vaile Company owed Clark the duty of exercising reasonable care in furnishing and maintaining safe and fit appliances for the operation of the crane, which it failed to do, and which negligence was the proximate cause of the injury causing his death. Railroad v. Fitzpatrick, 42 O. S., 318; McGatrick v. Wason, 4 O. S., 566; Col., H. V. & T. Ry. v. Shannon, 4 C. C., 449; Cleveland Axle Co. v. Zilch, 12 C. C., 578.
    7. An exception to overruling a motion for a new trial is necessary to review the weight of evidence. 7 C. C., 438.
    Facts.
    Daniel S. Clark was employed by the Stillwell-Bieree & SmithVaile Company as a molder at its shops in Dayton, Ohio, and on February 6, 1903, while engaged in placing the top of a mold on the bottom piece was instantly killed. A five ton mold had been filled with sand, and by the help of an overhead crane and chains and an old wooden beam attached thereto, the mold was first turned over and then lifted and suspended at a height of four or five feet in the air, and, while so suspended,. Clark went underneath for a moment to trowel the disordered surface of the sand, occasioned by the turning and lifting of the mold, when the beam broke, resulting in his death.
    
      The petition set forth as causes the unsafe, defective beam, and the lack of inspection and repair thereof. It also contained a cause of action on defective machinery under Coal & Car Co. v. Norman, 49 O. S., 598, and a cause under 95 O. L., page 112, one under the common law and one under the new statute.
    The defendant set up in its answer that the defect in the beam' causing it to break was a latent one and could not have been discovered by inspection. It denied that it or its agents or employes had'any knowledge of the defect and if there was one that Clark could have as readily detected it as their foreman. It denied all the other allegations in the petition and averred that the negligence of Clark contributed to his death.
    To the answer of the defendant, the plaintiff filed a reply denying the allegations of the answer.
    The facts developed a ease under the new statute, 95 O. L., 112, but, under the common law (49 O. S., 598), they failed to show that the deceased had no knowledge of the defect and had not equal means of knowing with the master a necessary averment under the common law.
    A motion to take the case from the jury and direct a verdict for the defendant was made at the end of the testimony for plaintiff.- Upon this motion the defendant claimed 49 O. S., 598, governed, while the plaintiff claimed that 95 O. L., 134, set that law aside, and that it was only necessary for plaintiff to prove that the deceased was in the exercise of due care and diligence at the time of the casualty. The court overruled the motion and a verdict for $4,500 was rendered for plaintiff.
    Defendant within three -days filed a motion for a new trial, which was overruled, and the decision following was made at that time.
    The case was taken to the circuit court, where the common pleas was reversed. Then it was taken to the Supreme Court and the circuit court was reversed and the common pleas court affirmed, without report (76 O. S., 576).
    
      
       Reversed by the Circuit Court without report; Circuit Court' reversed and the Common Pleas affirmed by the Supreme Court without report. Clark’s Admr. v. Stillwell-Bierce & Smith-Vaile Co., 76 O. S., 576.
    
   Kumler, J.

This .case comes before the court on a motion for a new trial. It is an action brought under Sections 6134 and 6135 to recover damages for unlawful killing. The plaintiff sought to have the case tried upon the theory of the coal car company ease.

The accident was due to defective appliances of the defendant. That was conceded, that he was operating a large beam some ten or twelve feet long, four inches thick and perhaps fourteen inches through, used for hoisting copes and flasks filled with sand that weighed four or five thousand pounds. It appeared from the testimony that about six weeks before this accident occurred that the beam was standing up against the wall and fell down and one side was weakened.

There was .a man by the name of Conley who was superintendent of the foundry; he was clothed with authority to employ and discharge men, and it was also part of his duty to inspect the machinery and appliances. That was proven beyond any question at all. There was no question about the man being killed; there was no question about his leaving a wife and five children, ranging from six to thirteen years old; there is no question of his earning in the neighborhood of $900 per annum; he hadn’t any other property. The jury brought in a verdict of $4,500.

The defendant claimed and undertook to narrow the ease under the rules as laid down in the 49 O. S., in the case of Coal & Car Co. v. Norman. That was a case of defective appliances, and Judge Minshall lays down the rule, quoting from Beach on Negligence; he says:

“The servant in order to recover for defects in appliances of the business, is called on to establish three propositions: 1. That the appliance was defective. 2. That the master had notice thereof, or knowledge, or ought to have had.. 3. That the servant did not know of the defect, and had not equal means of knowing with the master, and it is elementary in the law of pleading that, whatever a party is required to prove in order to make out his claim must be averred.”

I undertake to say that in a case like that of Clark, where a dead man is called upon to prove that he did not know a certain thing, that it is a substantial foreclosure of his cause of action. How is he going to prove that fact, that he himself had due notice or knowledge?

“3. That the servant did not know of the defect, and had not equal means of knowing with the master.”

Iiow could Clark in this case testify that he knew of that defect? How could he testify about having equal means of knowing ?

There isn’t a word of testimony, except some negative testimony; and we were asked to charge this jury that before they could return a verdict for the plaintiff in this case that they must find by a preponderance of the evidence that Clark did not know of that defect. If he did know of it, under this decision his ease is gone up in smoke.

There was a statute passed in 1902 which we followed in the trial of this case; we ignored the case in the 49 O. S., 598, and we believe that this statute Was passed for the very purpose of getting rid of that decision. That decision has been followed in two or three or more -authorities, and I think that somebody had the good sense to know that it was an utter impossibility for the plaintiff to recover under the circumstances; I don’t care who he may be, nor who the lawyer may be, he can’t do it. He may perhaps get a verdict but the courts would set aside such verdicts as fast as they would come in, if they were based upon-that decision.

Now, the 49 O. S., applies only to defective appliances and defective machinery. This act is directed to that very thing. It is found in the 95 O. L., 114:

“Be it Enacted by the General Assembly of the State of Ohio:
“Section 1. An employer shall -be responsible in damages for personal injury caused to an employe, who is himself in the exercise of due care and diligence at the time, by reason of any defect in the condition of the machinery or appliances connected with or used in the business of the employer, which arose from, or had not been discovered or remedied owing to the negligence of the employer, or of any person in the service of 'the employer, entrusted by him with the duty of inspection, repair, or of seeing that the machinery or appliances were in proper condition.”

' Now, if that doesn’t give a cause -of action to an employe who has been injured by reason of defective inspection of machinery or appliances, where the inspection has not been guarded with proper care and diligence, I don’t know what it means.

John J. Hoover and G. H. Kumler, for plaintiff.

McMahon & McMahon, contra.

It was said by counsel for defendant in this case that the corporation lawyers knew of that going to be passed, and that was done for the purpose of re-enacting the common law. We have got the common law in the 49 O. S. I undertake to say, and will never believe until the Supreme Court holds to the contrary, that that section of the code was passed for the very purpose of being relieved from the burdens of the 49 O. S. And if the Supreme Court holds to the contrary, I will still be a “doubting Thomas” on that proposition.

There is no question but that .this beám bróké; there is no question .about Conley being the foreman of that-.foundry; it was his duty to employ and discharge men, ánd ito inspect 'the appliances and machinery; he took the’ broken' beam' to the carpenter shop out there. And the testimony shows that- by reason of its long usage and its being exposed to the elements, that it was not fit for repair; thereupon the carpenter ordered the foreman to get timber for two new beams. He testified, that in three or four days after that time Conley, the inspector— Conley, the foreman — conies back and cancels that order and orders him to repair this ’as best he could. He did repair it and took it back to the foundry, and it was used by Clark and other men in hoisting these heavy copes; it broke and killed him. It was a question for the jury as to whether or not that was properly inspected. After having been broken and.after having been condemned by him, were they guilty of negligence in putting that instrument into the hands of the foundrymen after that time? That was in the hands of the jury. Be that as it may, that is our present -holding.

Taking the -49 0.- S., and have this man prove that he did not know of that existence, when he was. in his grave, it simply bars him from the right of'action. 'You can’t do it; you^night as well save your paper and pen in drawing that petition. , The motion for a new trial will be overruled. '  