
    INJURIES RECEIVED IN EXPOSED MACHINERY.
    Circuit Court of Hamilton County.
    The Eight Hour Tobacco Co. v. George Koellner.
    Decided, March 12, 1910.
    
      Unguarded Machinery — Failure to Enclose Does Not Render a Master Liable for Injury in, When — Proximate Cause — Negligence—Doc- ' trine of Respondeat Superior — Charge of Court — Section J¡S64-89c.
    
    1. The fact that an engine was not surrounded with a guard-rail does not render the master liable for an accident to an outsider who was assisting the master’s own employes .in carrying a heavy piece of machinery past the engine, where it appears that under the circumstances a guard-rail would not have prevented the happening of the accident.-
    2. Where, in such a case, there is testimony tending to prove that the plaintiff tripped over a corner of the engine platform while walking backwards assisting in carrying the weight, and the accident was due to no fault of the workmen assisting him, it is error to refuse to charge the jury on that theory of the case.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The plaintiff in the original action, George Koellner, sold and delivered to the defendant, the Eight Hour Tobacco Co., a steam pump weighing about 400 lbs., and while assisting the employes of the defendant in carrying the pump through a narrow passageway, on one side of which was a revolving engine, suffered a fracture of his right arm by a stroke from the crank of the engine. The jury returned with a general verdict for the plaintiff the following interrogatory and answer:

“What act or acts, if any, on the part of the defendant, was the immediate cause of the plaintiff’s injury? In permitting an engine to operate at the time the pump was being carried in a narrow passage-way without said engine being guarded.”

Although the passage-way was only feet wide with a coal-bin' on one side and an engine operating on the other, the pump was bulky and heavy and three men were assisting plaintiff in the work, it does not appear that the work could not be performed with reasonable security provided each and 'all of the workmen exercised ordinary care. Had the engine itself been surrounded by an ordinary guard-rail, it would have afforded plaintiff’s arm no protection, unless placed at such height as would prevent his arm from extending over or under it and from coming in contact with the engine.

It is averred in the petition, and the evidence tends to prove, that the engineer, one of the three employes of the defendant, negligently caused said pump to be moved so as to force plaintiff over and upon the revolving wheel of the engine. If this be so, then the negligent act of the engineer was the proximate cause of the injury and the unguarded engine only a condition; but in that event the defendant would be liable as he was not a fellow-servant and the doctrine of respondeat superior applies. St. Railway Co. v. Bolton, 43 O. S., 224; Railroad Co. v. Marsh, 63 O. S., 236.

On the other hand there is testimony tending to prove that the plaintiff. accidentally tripped on the corner of the engine platform while walking backward and carrying the pump; and without any fault of the other workmen. This theory of the case was presented by special instruction No. 5 requested by the defendant but refused by the court. We think this was error, because under such circumstances the unguarded revolving engine was not the proximate cause of the injury; but the efficient and direct cause was the accidental tripping of the plaintiff.

The defendant objects to the charge of the court upon contributory negligence, because not in' issue; but it offered testimony tending to prove such negligence and it was received without objection, hence it can not consistently complain, of an appropriate instruction for the consideration and application of such evidence by the jury.

Special instruction No. 1 given by request of defendant, although most favorable to it, should not have been given, because it excludes all consideration of the negligence of the employes assisting in the work.

The judgment will be reversed for error in refusing special instruction No. 5 requested by defendant, and the cause remanded for a new trial.  