
    NEGLIGENCE — MASTER AND SERVANT — CHARGE TO JURY.
    [Summit (8th) Circuit Court,
    April Term, 1902.]
    Caldwell, Marvin and Hale, JJ.
    India Rubber Company v. Vincent Anthony Tobin.
    1. Insufficiency of Instructions to Jury.
    A jury is not sufficiently instructed by referring them in a general way to the petition to determine “ what the allegations of negligence are and how to deal with them,” and permitting the allegations to go to them with equal sanction, under some general abstract propositions of law that apply to the relation of master and servant, without explanation of their application to the acts of negligence specified and in issue. .
    2. Rube as to Duty of Employe to Exercise Care.
    The fact that an employe in a manufacturing concern is in a sleepy and exhausted condition from overwork, while it may enhance the responsibility of the employer, does not relieve the employe from the exercise of ordinary care and prudence while operating a dangerous machine, nor excuse him from failing to take reasonable precautions for his own safety commensurate with the obvious and apparent danger to be apprehended.
    3. Assumption of Risk by Employe.
    No recovery can be had by an employe for injuries received while operating a machine not properly guarded, where it appears that such machine was in ordinary use in manufactories of the kind in question, that it was adapted to the purpose for which it was used, was in good repair, and that the employe had knowledge of its construction and operation. The employe, under circumstances, assumed the risk.
    Grant & Sieber, for plaintiff in error,
    cited:
    1. The amended petition upon its face does not entitle the plaintiff to recover.
    The allegations of overwork, and being too tired and sleepy “ to fully realize or appreciate ” the danger into which he voluntarily put himself, will not avail to dispense with the rule of law upon that subject. He was himself the sole judge of how far it was safe to tax his powers of endurance, and went beyond them, if at all, at his own peril: Coal Co. v. Estievenard, 58 Ohio St. 43-44 [40 N. E. Rep. 725]; Ferguson v. Cotton Mills, 61 S. W. Rep. 53 [106 Tenn. 236]; Yazoo City Transp. Co. v. Smith, 28 So. Rep. 807 [78 Miss. 140]; Ervin v. Evans, 56 N. E. Rep. 725 [24 Ind. App. 335]; Suter v. Lumber Co., 62 N. W. Rep. 927 [90 Wis. 118]; Truntle v. Woolen Mills Co., 58 N. W. Rep. 832 [57 Minn. 52]; Feely v. Cordage Co., 37 N. E- Rep. 368 [161 Mass. 426]-; Kelley v. Asphalt Co., 20 S. W. Rep. 271 [93 Ky. 363]; Barry v. Biscuit Co., 59 N. E. Rep. 75 [177 Mass. 449]; Kelley v. Woolen Co., 58 N. E. Rep. 182 [177 Mass. 128]; Carrington v. Mueller, 47 Atl. Rep. 564 (N. J.); Carriere v. McWilliams, 29 So. Rep. 333 [104 La. 333]; Jones v. Manufacturing & I. Co., 43 Atl. Rep. 612 [92 Me. 565; 69 Am. St. Rep. 535]; Worthington v. Goforth, 26 So. Rep. 531 [124 Ala. 656]; Detroit Crude Oil Co. v. Grable, 94 Fed. Rep. 73 [36 C. C. A. 94]; Helmke v. Tilmany, 8 Am. Neg. Rep. 172; Cunningham v. Iron Works; 43 Atl. Rep. 106 [92 Me. 501]; Gillin v. Railway Co., 44 Atl. Rep. 361 [93 Me. 80]; Hettchen v. Chipman, 41 Atl. Rep. 65 [87 Md. 729]; Swift & Co. v. Holoubek, 75 N. W. Rep. 584 [55 Neb. 228]; Lowcockv. Paper Co., 47 N. E. Rep. 1000 [169 Mass. 313]; Soutar v. Electric Co., 70 N. W. Rep. 796 [68 Minn. 18]; Ruchinsky v. French, 46 N. E. Rep. 417 [168 Mass. 68]; Smith v. Beaudry, 56 N. E. Rep. 596 [175 Mass. 286];- Worlds v. Railway Co., 25 S. E. Rep. 646 [99 Ga. 144]; Berger v. Railway Co., 38 N. W. Rep. 814 [39 Minn. 78]; Stuart v. Railway Co., 40 N. E. Rep. 180 [163 Mass. 391],
    In the light of these authorities we maintain that the pleading shows affirmatively that the risk complained of was conclusively assumed by the plaintiff, and that nothing alleged in the petition withdraws the case from the effect of the rule following from such assumption. The trial court, therefore, should have sustained the objection made to the introduction of any evidence.
    2. As to the distinction between assumption of risk, and the defense of contributory negligence, see Limberg v. Dumber Co., 60 Pac-Rep. 176 [127 Cal. 598; 49 D- R. A. 33], and 10 Am. Neg. Rep. 288. And the former need not be pleaded; but it is provable under a general denial: Baker v. Asphalt Co., 92 Fed. Rep. 117.
    3. As to assumption oí risk, in addition to cases cited above; Fricker v. Bridge Co., 9 Am. Neg. Rep. 194 and note; Benignia v. Pennsylvania Co., 9 Am. Neg. Rep. 196 and note; Cudahy Pack Co. v. Marcan, 9 Am. Neg. Rep. 670; Silvia v. Manufacturing Co., 59 N. E. Rep. 73 [177 Mass. 476]; Coal Co. v. Estievenard, 53 Ohio St. 43-4 [40 N. E. Rep. 725]; Krause v. Morgan, 53 Ohio St. 26 [40 N. E. Rep. 886].
    4. Upon his own testimony, plaintiff below was not entitled to recover, and the court should have sustained the motion to take the case from the jury. Brown Oil Can Co. v. Green, 12 Circ. Dec. 510 (22 R. 518); Krause v. Morgan, 53 Ohio St. 26, 42 [40 N. E. Rep. 886]; Silvia v. Sagamore Co., supra.
    
    5. If the plaintiff below relied upon an order given to him to do a dangerous thing, then the superior had no authority to give it, and obedience to it was, of itself, contributory negligence on plaintiff’s part: Joswoyak v. Railway Co., 4 Re. 317 (Cleve. U. Rep.); Roul v. Railway Co., 11 S. E. Rep. 558 [85 Ga. 197]; Whatley v. Railway Co., 30 S. E. Rep. 1003 [104 Ga. 764]; Peirce v. Oliver, 47 N. E. Rep. 485 [18 Ind. App. 87]-
    6. If the plaintiff below relied upon his obedience to orders to justify the risk he took, it will not avail him in this case. Nor will his obedience relieve him from the burden of contributory negligence; Worlds v. Georgia Railway Co., 25 S. E. Rep. 646 [99 Ga. 283]; American Carbon Co. v. Jackson, 56 N. E. Rep. 862 [24 Ind. App. 390]; Newnom v. Telegraph & Tel. Co., 47 S. W. Rep. 669 (Tex. Civ. App.); Whatley v. Railway Co., 30 S. E. Rep. 1003 [104 Ga. 764]; East Chance Mining Co. v. Ames, 47 Pac. Rep. 382 [23 Colo. 167]; Turner v. Eumber Co., 26 S. E. Rep. 23 [119 N. C. 387]; Kansas & T. Coal Co. v. Reid, 85 Fed. Rep. 914 [29 C. C. A. 475]; Reed v. Stockmeyer, 74 Fed. Rep. 186 [20 C. C. A. 381]; Eeary v. Railroad Co., 2 N. E. Rep. 115 [139 Mass. 580]; Dougherty v. Iron & Steel Co., 60 N. W. Rep. 274 [88 Wis. 343]; Gavi-gan v. Railway Co., 67 N. W. Rep. 1079 [110 Mich. 71]; Writt v. Dumber Co., 65 N. W. Rep. 173 [91 Wis. 496]; Jones v. Railway Co., 31 S. W. Rep. 106 [11 Tex. Civ. App. 39]; Wilson v. Mills, 34 N. E. Rep. 90 [159 Mass. 154]; Hanson v. Hammell, 77 N. W. Rep. 839 [107 la. 171]; Lamson v. Ax & Tool Co., 58 N. E- Rep. 585 [177 Mass. 144]; Johnson v. Snuff Co., 41 Atl. Rep. 936 [62 N. J. E- 417]; Bonnet v. Railway Co., 31 S. W. Rep. 525 (Tex. Civ. App.); Demers v. Deering, 44 Atl. Rep. 922 [93 Me. 272]; Schroeder v. Car Co., 22 N. W. Rep. 220 [56 Mich. 132]; Sanborn v. Railroad Co., 10 Pac. Rep. 860 [35 Kan. 292]; Hurst v. Burnside, 8 Pac. Rep. 888, 893 [12 Ore. 520]; Richstain v. Mills Co., 32 N. E- Rep. 908 [157 Mass. 538]; Commonwealth v. Eeach, 36 N. E. Rep. 471 [160 Mass. 542]; Crowley v. Mills, 19 N. E. Rep. 344 [148 Mass. 228]; Williams v. Churchill, 137 Mass. 243 [50 Am. Rep. 304]; Sweeney v. Envelope Co., 5 N. E. Rep. 358 [101 N. Y. 520].
    7. The plaintiff below was guilty of contributory negligence. A large number of the cases already cited bear upon this point, and are, as we think, decisive of it. But we call attention also to the following: Coal Co. v. Estievenard, 53 Ohio St. 43-4 [40 N. E. Rep. 725]; Coal and Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857]; Hesse v. Railroad Co., 58 Ohio St. 167, 169-70 [50 N. E. Rep. 354]; Brown Oil Can Co. v. Green, 12 Circ. Dec. 510 (22 R. 518); Worlds v. Railway Co., 25 S. E. Rep. 646 [99 Ga. 283]; Wabash Ry. Co. v. Skiles, 64 Ohio St. 458 [60 N. E. Rep. 576].
    8. As to misconduct of counsel in argument, we do not think that either the apology of the attorney, or the comments of the court cured the mischief which was intended and which was wrought. If counsel may use such highly prejudicial language in argument, and then by offering to “ take it back ” if mistaken, after it has found lodgment in the minds of the jury, then no abuse of the right of discussion is too gross to be successfully perpetrated. We have here brought on the record the entire transaction, and think we are within the rule laid down in Warder, B. & G. Co. v. Jacobs, 58 Ohio St. 77 [50 N. E. Rep. 97].
    
      9. As to request No. 16, which was refused, we consider it pertinent to a material point in the case, and it was not covered in substance by the charge as given: English v. Railway Co., 24 Fed. Rep. 906; Fritz v. Gas & FI. Fight Co., 56 Pac. Rep. 90 [18 Utah 493]; Gibson v. Railway Co., 78 N. W. Rep. 190 [107 la. 596]; Kansas & T. Coal Co. v. Reid, 85 Fed. Rep. 914 [29 C. C. A. 475],
    E. F. Voris, and Rogers, Rowley & Bradley, for defendant in error.
    Heard on Error.
   HALE, J.

The case of the India Rubber Company against Tobin, error to the court of common pleas. We have encountered much difficulty in determining what ought to be done under this record, but after as mature consideration as we are able to give it, we have reached the conclusion which I will announce.

Tobin was in the employment of the rubber company as an ordinary workman and was injured while in that employment. He seeks compensation of the rubber company for the loss he has sustained by reason of that injury, and says that it was caused by the negligence of the company, without his fault. The negligence charged, in substance, is, that this manufactory had, as a part of its machinery, a machine known as a washer> which consisted, in part, of massive corrugated iron rolls, less than three-quarters of an inch apart, at the end of which were large and powerful cogwheels by which these rolls were rotated ; that the defendant was guilty of carelessness and negligence in not having appliances for stopping the rolls of said washer when in motion, and in not providing any safeguards or appliances for preventing those near the washer from being drawn into and injured by them; that the plaintiff was, at the time of the grievances hereinafter specified, an employe of the said defendant, subject to the orders and directions of one Charles Wheeler, a foreman of said defendant, and superior of plaintiff; that said plaintiff worked on a machine called a calender, about three feet from said washer; that on or about April 17,1893, the said defendant had a large amount of work to do and was running its manufactory night and day, and said defendant carelessly and negligently did not at the time have a sufficient number of skilled operatives to run said calender without requiring the plaintiff to work much longer each twenty-four hours than he was able to keep fully awake, as defendant then well knew. It is then alleged that by overwork Tobin became so exhausted that on this morning in which he was injured he was so sleepy and so completely exhausted that he was Unable to take good care of himself, and being directed by this foreman, Wheeler, to wash his hands at this washer, — which is said to be dangerous machinery, — in performing that order, his hand was caught within the rollers and he received the injury that he complained of.

It will be noticed then that there are, in this petition, several distinct acts of negligence charged against this company.

Having read the pleadings to the jury, the trial court then said after stating some propositions of law applicable to the case—

‘ ‘ The pleadings, to which I have called your attention, present for your consideration and determination three principal propositions, which are as follows.
“ Was the defendant negligent in one or all of the acts complained of ?
“ If so negligent, was this negligence the proximate cause of the •injury to plaintiff of which he complains?
“ Did the negligence or want of care on the part of the plaintiff contribute to cause or produce the injury which he sustained? ”

Throughout this charge reference to the acts of negligence charged are only called to the attention of the jury by reference to the petition. No explanation of them, or what would constitute negligence in each particular case, is made except in a general way as follows:

“ Coming, therefore, to this case, you will first inquire whether the defendant was guilty of the negligence or some of the acts of negligence specified in the petition.”

There are quite a number of references throughout the charge in that general way, and the trial court permitted these allegations of negligence in the petition all to go to the jury with the equal sanction of the court as a ground of recovery on the part of the defendant in error. A glance at those would show that some of them at least could not be the basis of any recovery. A statement of these issues is followed by a number of abstract propositions of law, but without explaining to the jury the application to the particular facts of the case then on trial.

Our Supreme Court has, in a number of cases, referred to charges of this kind; and, in Coal Company v. Estievenard, 58 Ohio St. 43, 44 [40 N. E. Rep. 725], the court say : “ The charge of the court to the jury should not be as to abstract propositions of law, but should be confined to the law applicable to the facts of the case which the evidence tends to establish, and the attention of the jury should be called to the controlling point or points of the case, so that the verdict may not be founded upon unimportant matters.”

And on page 59 the judge, in delivering the opinion of the court, says : “ The defect in the charge, on the question of contributory negligence is, that it is, in the abstract, dealing with generalities, and failing to deal with the facts of the case as claimed by the parties. Defendant below, by its requests, urged the court to say to the jury that certain facts, if found by the jury, would prevent a recovery; but the court refused to say what acts on part oí plaintiff would defeat a recovery, and contented itself by telling the jury to look at all the evidence, to look at the knowledge of plaintiff, to look at his acts and conduct, etc., without telling them what use to make of such looking, or of the result thereof.”

The court, instead of the general propositions, should have called attention to the charges of negligence upon the subject of the machine, the washer, and explained to the jury if it was one in ordinary use in manufactories of that kind, and that the defendant in error had knowl-edgeof that fact, knew about its operation, it was one of the risks he assumed, and could not be considered by them in determining whether the defendant was responsible or not, that the fact whether they had a large number or small number of men had nothing to do with the negligence of the company while this defendant was washing at the washer ; and should have explained to the jury the effect of the exhausted condition and the bearing it had upon the questions at issue about which there was not a word said in the entire charge. The jury were permitted to find under this charge that the defendant company did not have men enough in its employment, and, therefore, responsible for this injury; that it did not have this washer properly guarded, and although the defendant in error knew all about it and assumed all risks of danger incident to its use, the company was responsible.

And it seemed to us that the jury were not sufficiently instructed as to the allegations of negligence by saying, “ I refer you to the petition to determine what the allegations of negligence are and how to deal with them, under some general propositions that apply to the relation of master and servant.”

Upon this subject of the overwork the attention of the court was called to it by requests, which were refused — the eleventh aqd fourteenth requests. The fourteenth reads : “ If the plaintiff, at the time of the injury, was in a sleepy or exhausted condition, that fact will not relieve him from the exercise of ordinary care and prudence while using a machine dangerous to operate, and such care and prudence must have been commensurate with the obvious or apparent danger to be apprehended from using the machine in question for the purpose for which he did use it; nor will such sleepy condition excuse him from failing to take reasonable precautions for his own safety while washing his hands at said washer.”

We think that charge should have been given. Whether his sleepy and exhausted condition enhanced the responsibility of the company in taking care of him, it did not excuse him from the exercise of ordinary care. It is barely possible that the charge covered this in a general way, that the defendant in error must be without contributory negligence himself, use all reasonable care to take care of himself, but on the effect of the particular condition he was in, nothing was said. We think the charge failed to get before the jury definitely the negligence charged in the petition, which could, under the facts of this case, have been made the foundation of a recovery.

Upon another subject the court charged the jury in these words : “ It is alleged in the petition, and evidence has been offered to you tending to show, that the plaintiff, at the time, or just before, he received this injury, was ordered and directed by the foreman, Mr. Wheeler, to go to this washer and wash his hands, and that in obedience to said order and command he went to the machine called a washer, and while so engaged his hand was drawn in between the rollers and crushed.”

“ On that subject the rule of law is this:
“ That one who, as a servant, does that in his employment which he is ordered to do by his master, and is injured by the culpable negligence of the latter, is not deprived of a right to recover for the injury by the fact that it was apparently dangerous, if a person of ordinary prudence would, under the circumstances have obeyed the order, provided he used ordinary care in obeying it.”

A correct rule of law in a proper case. But the trial court applied to the facts of this case the proposition that is stated in Van Duzen G. &. E. Co. v. Schelies, 61 Ohio St. 296 [55 N. E. Rep. 998]. This case is sometimes erroneously treated as stating an entirely new proposition recently discovered in fixing the relation between master and servant and the tendency is to apply it indiscriminately to all kinds and classes of negligence cases in suits by the employe against the employer.

The rule stated in that case has no application whatever to a transaction in which the employe is ordered to work in a place of danger, the risk of which he assumed in entering into his employment. It certainly is not negligence of the master to require or order the employe to work upon machinery, or in a place of danger, the dangers of which he assumed in his contract of employment. In such a case the servant, not the master, continues to take the risk of the danger. Now, in that case, on page 311, the court, in the opinion, says: “At the time the injury occurred, he (that is, the complainant) was in the employ of the defendant as a 1 vise-hand,’ and had been called by the foreman to assist in the adjustment of a portable gasoline engine with pump and circular saw attached. The saw was in motion at the time and not properly protected ; and he was ordered to adjust the shafting of the pump, which was close and next to the saw. He suggested that it was not safe to do so without stopping the saw. The foreman peremptorily renewed the order; he obeyed, his clothing was caught by the saw and he was seriously injured.”

As we understand it, as to the ordinary usual risks in the business in which the employe is engaged, there being nothing unusual, nothing out of the ordinary line, the rule there stated as to the orders of the master has no application; but if in the transaction between the master and the servant, either by what was said between them, or what was done between them, the fair inference is to be drawn that the master in that particular matter, and as to that particular act, assumed the risk of doing that thing, then he alone stands responsible and the employe is relieved, but it must relate to something out of the risk which the employe assumed in the nature of his employment.

An employe working at a machine dangerons in some respects» assumes the risk; and if he continues to work without any notification to the master, upon that machine, when out of repair, he still would take the risk of its danger, but if he calls the attention of his employer to the defects and is promised a repair and continues, then the fair inference between them is that the servant is relieved for the time being from the assumption of risk for which he otherwise would be responsible.

Now, in this particular case it is shown beyond any controversy that this washer was of the usual kind used and proper in a manufactory of this kind, adapted to the purposes for which it was to be used, was in good repair, that the employe had full knowledge of all its construction and its parts. It required no skill to ascertain, apprehend and appreciate the dangers connected with it; he had washed at this very washer in this way, as the proof shows, many times, and we are constrained to Say that he assumed, in this particular case, the risk and dangers connected with that employment and working about that machinery.

Again, in this particular case, the order that is shown in this proof was no more than a simple direction, if it existed at all, to this employe to go about the work in the usual way. It was a long time before- he could be got to say, while on the stand, that the order was to him to wash at this particular washer. In our judgment nothing more took place here than a simple direction in the usual and ordinary course of doing that business ; nothing to relieve the employe from the responsibility he assumed under his employment; and that the charge that I have read had no application whatever to the facts of this particular case.

The result of our investigation is that we hold that the charge of the court was misleading, and, therefore, erroneous; that the particular proposition of the charge that I have quoted as applicable to the case was erroneous; that the court erred in overruling the motion for a new trial because of the fact that the verdict is not sustained by sufficient evidence, and the judgment is reversed and case remanded to the court of common pleas for a new trial.  