
    Visconsi et al. v. Staufert.
    (Decided March 27, 1933.)
    
      
      Messrs. McKeehan, Merrick, Arter & Stewart, for plaintiffs in error.
    
      Mr. Harry F. Payer, for defendant in error.
   McGill, J.

This is an error proceeding to reverse a judgment obtained by one John Staufert in the court of common pleas for personal injuries received as a result of the fall from a scaffold on a building where Staufert was engaged as a carpenter by one Sanvido.

The defendants below, Antoni Visconsi and Mario Puleo, owned a lot in the village of Rocky River, Ohio, and, after having plans and specifications prepared, let various parts of the work to various contractors.

A few days before the accident, Staufert, the plain-, tiff, went to work as a carpenter, and, with another man, Talacil, built a scaffold around one corner of the building approximately sixteen feet above the ground. Staufert worked on the scaffold Friday and Saturday. On Monday morning, July 30, 1928, the scaffold fell, by reason of a trench which had been dug between Saturday noon and Monday morning near the bottom of the scaffold, and as a result Staufert sustained serious injuries.

The defendants contended in the trial below that they were not liable because all of the work was being done by independent contractors, and that they (the defendants) exercised no supervision or control over the mode and manner of doing the work. It was claimed by Staufert, however, that these defendants were bricklayers or builders; that they were constantly on the premises, and that they did in fact exercise control and supervision over the work in the erection of the building.

Counsel for plaintiff below contended that the work was or became inherently dangerous by reason of the fact that this trench was dug after the scaffold had been erected, and that this trench was dug by the defendants, or at their direction, and that the change in the statical condition of the premises made the situation inherently dangerous.

Before argument, at the request of plaintiff’s counsel, the court gave the following instruction:

“The Court charges you as a matter of law that where danger to others is likely to attend the doing of a certain work unless care is observed, the person for whom work is being done is under a duty to see to it that it is done with reasonable care, and cannot by the employment of an independent contractor relieve himself of liability and injury resulting to others from the negligence of the contractor or of his servant.”

In a general charge the court charged, in substance, that the doctrine of inherent danger was an exception to the rule governing the relationship to an independent contractor, and submitted to the jury for consideration the question whether or not the work was inherently dangerous.

The general rule, to the effect that an employer is not liable for the negligence of an independent contractor is too well settled to need discussion. It is said in Shearman & Redfield on Negligence (6th Ed.), vol. 1, at page 397:

“The one indispensable element to his character as an independent contractor is that he must have contracted to do a specified work and have the right to control the mode and manner of doing it.”

In the instant case the court followed the law set forth in Covington 3 Cincinnati Bridge Co. v. Steinloch 3 Pairich, 61 Ohio St., 215, 55 N. E., 618, 76 Am. St. Rep., 375 (1899), in which case it was held that, where danger to others is likely to attend the doing of certain work, the owner, by the employment of an independent contractor, cannot relieve himself from liability for injuries resulting from the negligence of the contractor. In that case, however, there was a five-story brick wall which had been left standing in a ruined condition as a result of a fire. The work was intrinsically dangerous and likely to injure others.

In the case of Warden v. Pennsylvania Rd. Co., 123 Ohio St., 304, 175 N. E., 207 (1931), the second syllabus reads:

“Whether dang'er to the public is likely to attend the doing of the work is a question of fact to be submitted to the jury under proper instructions.”

In the Warden case the facts show that a trestle had been erected by the Culbertson Company, an independent contractor, over a busy street in the city of Cleveland, and that a plank extended a distance of approximately four, feet toward the portion of the street left open for travel; this obstruction being about three or four feet above the pavement. Under the circumstances in that case, with much traffic passing on a busy street, the question of inherent danger was properly submitted to the jury as a question of fact.

Again, in the case of Bales, Admx., v. Board of County Commissioners of Cuyahoga County, 30 Ohio App., 249, 164 N. E., 791 (1928), there was a situation where the county commissioners in the construction or repair of a road had permitted large piles of crushed stone and sand to be upon the highway in violation of a statute. It is said by Sullivan, J., at page 258:

“Furthermore, it is a sound rule of law that where the work done is inherently dangerous, as it is alleged in this case it was, the owner can not relieve himself from liability by committing the work to an independent contractor.”

In that case it will be seen that the large pile of crushed stone and sand on a public highway was likely to cause injury to the public, and the facts are readily distinguishable from a situation where the owners of a lot are erecting or causing to be erected a dwelling or an apartment.

There is nothing inherently dangerous about the construction of a dwelling or apartment house on a lot. Were it not for the fact that the court in this case applied the doctrine of inherent danger to the situation in granting the special request before argument, and in its general charge, this court would not disturb the verdict. The injection, however, of the doctrine of inherent danger, was prejudicial for the reason that it took away, at least to some extent, the defense of independent contractor. Whether or not the defendants exercised supervision and control over the method and manner of doing the work, as contended for by the plaintiff below, and whether or not the defendants dug or caused to be dug the trench, it is unnecessary to decide. It is clear to this court that the doctrine of inherent danger is not applicable and did not properly belong in the trial of this case.

Accordingly, the judgment of the court below is reversed, and this cause is remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Lieghley, P. J., concurs.

Levine, J.,

dissents for the reason that he is of the opinion that substantial justice was done.  