
    Guy, a Minor, v. The Henry J. Spieker Co.
    (Decided January 30, 1933.)
    
      Messrs. Fraser, Hiett, Wall & Fffler, Mr. Clarence P. Ducey and Mr. Hugh F. Shunch, for plaintiff in error.
    
      Messrs. Conn & Holloway, for defendant in error.
   Richards, J.

The plaintiff, a minor about seventeen years of age, was injured early in the morning of December 19, 1930, by an elevator or lift in the tower of the Toledo University building dropping under him. The building was then under construction and he was an employee of a subcontractor, Carl Dankert. In the trial of his action to recover damages for personal injuries, a verdict was directed' for the defendant at the conclusion of the evidence offered on behalf of the plaintiff.

The defendant, The Henry J. Spieker Company, was the general contractor for- the construction of the Toledo University building and had sublet to Carl Dankert certain stone and mason work. The Spieker Company was to furnish the material, mortar, scaffolding and hoisting, and Dankert was to erect the scaffold and perform the mason work. The elevator or hoist which fell was located in the tower. The Henry J. Spieker Company had erected the wooden tower and two elevators or hoists therein, and Dankert, in the performance of his contract for furnishing the labor necessary to do the mason work, was engaged in building the permanent stone tower around the wooden tower already erected. At the time of the injury the tower stone work had been constructed to a height of some 60 feet, but when completed was to be approximately 190 feet in height. The elevators were used for hoisting the material to the height needed for use on the stone tower as the work thereon progressed. The defendant company had installed a bell and signal system in the tower consisting of a push button located where workmen were employed at the top, and on pushing the button there located, the bell, which was near the bottom of the tower, close by the operator of the elevator, would ring. Employees of Dankert wheeled the stone in a wheelbarrow into the elevator at the bottom and thereupon called to the elevator operator, who was located only a few feet above them, to hoist the elevator, which he did with the aid of a gasoline engine. When the elevator reached the top, it was the duty of the operator of the elevator to render it stationary by the use of a “dog” inserted in a notch in a drum, until the operator desired to lower it. After the wheelbarrow loaded with stone had been removed from the elevator at the top and the empty wheelbarrow replaced on the elevator, a signal for lowering the elevator would be given by pushing the electric button located at the top. Three signals or rings were given for elevator No. 3 and four for elevator No. 4. When the button was pushed the bell located at the bottom near the elevator man would ring. The operator would then throw in the friction lever and raise the elevator a few inches in order to release the “dog” and thus permit the elevator to descend. The practice apparently was to permit the elevator to descend by gravity for some 30 or 40 feet and then its speed was slackened by means of a brake. Two employees, Jerry Swigart and Irving G-rindle, were furnished to operate the elevators, each working for twelve hours. Jerry Swigart operated the day shift and Grindle the night shift, which extended from 7 o’clock p. m. to 7 o’clock a. m.

The lights and signal system had been installed by the defendant, and as the work on the tower progressed it became necessary that these should be raised, which was done by the defendant. The gasoline engine located in the tower was owned by Dankert, but the one on the outside, was owned by the defendant company. The evidence tends to show that the gasoline and oil for operating the engines were furnished by the defendant company.

The motion for a directed verdict was granted on the ground that the evidence failed to show that the man operating the elevator was. an employee of the defendant company. We think the bill of exceptions contains evidence tending to show that the men who operated the elevator were at the time in the employment of the defendant company, and paid by it. That company alone seems to have had power to discharge them.

The president of the company was called as a witness and testified on this subject as follows:

“Q. The employees who operated the elevators and the gasoline engines, which propelled them, were employes of The Henry J. Spieker Company? A. Yes, sir.

‘ ‘ Q. Who was the operator on the day shift on the inside elevators ? A. I cannot tell you that.

“Q. A man named Jerry Swigart? A. He was on the job, but whether he operated that particular hoist or not I cannot say.

“Q. He was an employe of The Henry J. Spieker Company? A. Yes, sir.

“Q. How about Irving Grindle? A. He is an employe.

“Q. Do you recall his name? A. Yes, sir.

“Q. He was employed by The Henry J. Spieker Company? A. Yes, sir.

“Q. He operated the inside elevators on one of the shifts, didn’t he? A. Yes, sir.”

The contract between the defendant and Dankert required the defendant to furnish the hoisting, and this it did during all the time the stone tower was being constructed. This was an interpretation which the parties to the contract placed upon the same, and the men employed and paid by the defendant continued to operate the appliances for raising the material to the top of the tower. The only authority possessed or exercised by Dankert was to indicate the time the elevators were to be raised and lowered, and in the event an elevator was to be lowered the signal was given by one of Dankert’s men; usually the one who returned the empty wheelbarrow pushed the button on the top of the tower. As the record contains evidence tending to show that Grindle, who was operating the elevator at the time the plaintiff was injured, was in the employ of the defendant, there was sufficient on that subject to carry the case to the jury. The case is in line with the decision of the Supreme Court in Babbitt v. Say, Admr., 120 Ohio St., 177, 165 N. E., 721, a case decided on March 13, 1929. See, also, a decision rendered by our court on May 28, 1928, entitled Benschoter v. New York Central Rd. Co., 30 Ohio App., 276, 164 N. E., 785.

The evidence also tends to show that the elevator was dropped without any signal having been given therefor. The plaintiff testifies that immediately before the injury he saw the elevator come up, bringing a wheelbarrow loaded with stone, and that he was then standing within three or four feet of the elevator as it reached the level of the upper floor. He testifies that he walked over towards the elevator and put his right foot on the elevator, and that the elevator immediately fell from under him and he pitched head foremost into the shaft. He stated that the elevator was at the top just long enough for him to walk from where he was standing and place a foot on the elevator. He further testified that the floor of the elevator was not lifted up before the elevator plunged downward. This is some evidence tending to show that the “dog” had not been inserted in the notch, for if the “dog” had been so inserted it would seem that the elevator could not have dropped until it had been first raised sufficiently to allow -the “dog” to be released from the notch, and might justify an inference that the elevator had been temporarily held in place by a brake, Grrindle not having testified. The button was located near where plaintiff was standing, and he would have been likely to know if it had been pushed. Furthermore, if the floor of the elevator had been raised immediately before it plunged down, it would seem as if he must have observed that, because he was walking directly toward the elevator, and under such circumstances he would not have stepped on the elevator, or, if on, would have instantly jumped off. His duty was to remove the loaded wheelbarrow from the elevator on its arrival at the top, and he had not yet performed that duty when the elevator fell. The testimony tended to show that if everything was quiet the ringing of the bell could be heard on top of the tower. The injury happened at 5:20 o’clock in the morning, and it is not likely there would have been much noise at that time, and the evidence tends to show that the signal bell was not heard on top of the tower.

Another witness, who was located about 10 feet from .the bell, and had just loaded the elevator and directed it to be sent up, testified that he didn’t hear any bell signal. He testified that it was a regular doorbell, and, on being inquired of whether when it rang it rang loud or soft, answered, “It rang loud.”

Another witness, who was located near the bell, testified he didn’t hear it ring, that he was paying attention, and that they always had to be on the alert.

It is evident from what has been said that it was the duty of the operator of the elevator only to lower the same upon receiving the signal, and that some evidence was introduced tending to show that it was in fact lowered without any signal being given.

The contract between the defendant and Dankert, specifying who was to furnish the material and hoisting, and who was to erect the scaffold, etc., was in writing and was excluded from evidence by the trial court. In this we think that court committed error. The contract, while excluded from evidence, was attached to the bill of exceptions and naturally tends to show the relation of the parties in the execution of the work.

An ordinance passed by the city of Toledo requiring contractors and owners to cause all shafts and openings in floors of buildings under construction to be inclosed, or fenced by a barrier, was excluded from evidence. We think in excluding this ordinance the trial court committed no error. The absence of a barrier apparently had nothing to do with the injury suffered by the plaintiff, and was not a proximate cause thereof, under the evidence now in the record.

It is contended by plaintiff in error that the duty rested upon the defendant, in the exercise of ordinary care, to establish a signal bell at the top of the tower so that when the button was pushed Dankert’s employees would be notified that the elevator was about to be lowered. Whether that duty did or did not rest upon the defendant will best appear on a retrial of the case, when the evidence on both sides has been introduced, as the record before us contains no evidence that the button had been pushed before the elevator dropped, and we are concerned chiefly in determining whether the record contains evidence sufficient to carry the case to the jury.

It is contended by defendant in error that the judgment should not be reversed, because no reply had been filed at the time of the trial; and it is true that the allegations of the answer required a reply. The verdict was rendered on April 13, 1932, and motion for new trial was filed on April 15th. On April 21st the plaintiff filed a reply denying the allegations of the answer, and this reply is indorsed on the back, “Filed with leave of court”; the indorsement being approved by the trial judge. The motion for a new trial was not overruled; nor judgment rendered until June 13th. It will be noticed from the bill of exceptions that the motion for a directed' verdict was not based on the absence of a reply, but upon the evidence, and that the trial court granted the motion because of the absence of evidence and not because there was no reply. Before the motion for new trial was acted on and judgment rendered a reply was filed by leave of court, and this fact evidently made no difference in the opinion of the trial judge. The trial judge had power, it being at the same term of court, to set aside the verdict and then to himself render-judgment for the defendant for lack of evidence. When the judgment was rendered the issues were completely made up, and no prejudicial error existed by reason of the fact that the reply was not filed until after the verdict was directed.

For the reasons given the judgment will be set aside and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Lloyd and Williams, JJ., concur.  