
    Shank, Admr., v. The Hamilton Foundry & Machine Co.
    
      Negligence — Duty of employer to safeguard machinery — Section 1027, General Code — Charge to jury in language of statute not error — Evidence of what was done with machinery after accident, inadmissible — Court of Appeals cannot review weight of evidence, when — Trial court grants new trial, but refuses same after retrial — Section 11577,. General Code — Error cannot be predicated upon court’s reprimand of attorney, ivhen — No protest or exception taken until after trial.
    
    1. Where trial court set verdict for plaintiff aside as against weight of evidence, Court of Appeals, under Article IV, Section 6 of the Constitution, could not consider question whether verdict for defendant at second trial was against weight of evidence, since trial court, under Section 11577,' General Code, could not have granted second new trial on such ground.
    2. In action for death of servant injured while at work, charge in language of Section 1027, paragraph 2, General Code, requiring employer to inclose wheels and belt's on machinery, was proper on question of defendant’s negligence.
    3. In action for death of employe, injured while operating sand conveyor, refusal to permit plaintiff to show what was done with conveyor after accident was not error, under Section 1027, paragraph 2, General Code, requiring machinery to be protected at time of accident.
    4. No error can be predicated on reprimand of court to plaintiff’s attorney, where attorney made no protest to remarks of court and took no exception thereto until after trial.
    (Decided September 13, 1926.)
    Error: Court of Appeals for Butler county.
    
      Messrs. Shank S Shank, for plaintiff in error.
    
      Mr. W. G. Shepherd, for defendant in error.
   Cushing, J.

Albert Logsdon, prior to May 20, 1920, was employed by the Hamilton Foundry & Machine Company in and about a sand conveyor located and operated in the company’s plant. On that day he received an injury, as it is claimed, from the failure of the defendant to protect the sand conveyor, from the effects of which injury he died. The administrator brought an action against the foundry company, and recovered a verdict of $3,500. The trial court set that verdict aside, on the ground that it was against the weight of the evidence. The jury at the second trial returned'a verdict in favor of the Hamilton Foundry & Machine Company. This action is prosecuted to reverse that judgment.

The following errors are assigned:

That the verdict is against the weight of the evidence, and not supported by sufficient evidence.

Error in the charge of the court.

Error of the court in refusing to admit evidence offered by plaintiff.

Error of the court in reprimanding plaintiff’s attorney in the presence of the jury.

The plaintiff in error failed to cite any authorities in support of his contention that the verdict is manifestly against the weight of the evidence. Cleveland Railway Co. v. Trendel, 101 Ohio St., 316, 128 N. E., 136, and Rolf v. Heil, 113 Ohio St., 113, 148 N. E., 398, are directly opposed to his contention. The Trendel case construes Section 11577, General Code, and holds that where the trial court has granted one new trial on the weight of the evidence it is prohibited by that section from granting a second new trial on that ground, and that the Court of Appeals is without authority to weigh the evidence and determine whether or not the verdict is against the weight thereof. The decisions cited are to the effect that inasmuch as the statute says the same court shall not grant more than one new trial on the weight of the evidence, and inasmuch as the jurisdiction of the Court of Appeals, by Section 6, Article IY, of the Constitution, is limited to a review of judgments of courts of record, there could be no error on the part of the trial court in refusing to grant a second new trial on the weight of the evidence; and, as the jurisdiction of the Court of Appeals is limited to a review of judgments, the question of the weight of the evidence could not be submitted to the Court of Appeals after the second trial of the case.

The second error claimed is that the trial court erred in its charge to the jury. It quoted the language of paragraph 2 of Section 1027, General Code, as follows: “They shall enclose with substantial railings or casing all exposed cogwheels, flywheels, handwheels; main belts, transmitting power from engine to dynamo, or other kind of machinery, ’ ’ and thus gave the jury the proper rule by which it should be guided in determining whether or not the foundry company was guilty of negligence. This charge was- not erroneous.

The court did not err in refusing to permit the plaintiff to show what was done with the sand conveyor after the accident. Under the statute, the question was whether it was protected at the time of the accident, and whether that protection was, as the statute provides, “with substantial railings,” etc.

On the question of the court reprimanding the attorney for plaintiff in error, it seems to us that the question is concluded by the finding of the court in the bill of exceptions. The court said:

“Robert J. Shank, counsel for plaintiff, made no protest or objection to the remarks which the court addressed to him, during the argument of the case, and took no exceptions thereto; that the first knowledge which the court had that Robert J. Shank claimed an exception was when the court stenographer called to the attention of the court, after the trial, that Robert J. Shank had come to her room, and made the statement contained on page 170 of the bill of exceptions and the court therefore does not allow the exception which Robert J. Shank claims to have made, and as contained on page 170 of the bill of exceptions.”

Finding no prejudicial error in the record, the judgment of the court of common pleas will be affirmed.

Judgment affirmed,.

Buchwalter, P. J., and Hamilton, J., concur.  