
    INJURY TO AN EMPLOYE FROM A KNOWN DANGER.
    [Circuit Court of Lucas County.]
    Henry Marshka v. Republic Iron & Steel Company.
    Decided, October 21, 1905.
    
      Master and Servant — Negligence—Known Danger in Operating a Machine — Assurance of Foreman that Work is Safe — Not Binding on the Master, When.
    
    Where a peril which can be easily apprehended attaches to the operation of a machine that is in good order, and it appears that the operator understood the danger, the fact that his foreman on a previous occasion, when the machine may have been running at a different rate of speed and at work on different material, expressed the opinion that the work was safe, does not render the master liable for an injury to the operator from the apprehended danger; and the taking of a case from the jury under such circumstances does not constitute error. (Van Duzen Gas Go. v. Schelies, 61 O. S., 298, distinguished.)
    Wildman, J.; Haynes, J., and Parker, J., concur.
   The plaintiff in error, who was plaintiff below, brought a suit against the defendant, claiming a verdict because of a certain injury sustained, as he claimed in his petition, by reason of 'the negligence of the defendant. The plaintiff was an employe of ■the defendant and was engaged in the operation of a certain machine or device designed for cutting iron in the shop or factory of the defendant; and while so engaged on the 26th day of March, 1904, he sustained the injury described in his-petition. He was engaged in cutting two pieces of iron fastened together by bolts at the ends; and 'he'aJleges in his petition that to attempt to cut two pieces of iron so bolted together was dangerous; that he was- unaware of that fact; that he had been instructed by a superior employe representing the company that the work eou-ld be conducted without hazard.

To state the matter a little more specifically, he alleges that #ome time prior to the 26th day of March, 1904, the date of his injury, the defendant company had pieces of iron so bolted together placed with other material, which the plaintiff was required to cut; that the plaintiff told the' superintendent and foreman over him and in charge of his work, that he feared that he might receive injury in attempting to cut two pieces of iron fastened together; that said superintendent and foreman told plaintiff that there was no danger in doing said work and requested -and required plaintiff to- continue to do said work, and then he alleges that in the operation of the machine on the day of the injury and while- so engaged in cutting iron he was required to cut -two pieces of iron so fastened together; that while so doing said pieces of iron flew from the machine in such manner -as to strike plaintiff’s right hand and fracture both bones thereof between the wrist and elbow. He alleges that the defendant was careless 'and negligent in requiring and requesting plaintiff to cut two pieces of iron so bolted together. He says that he did not know and had no means of knowing of the danger to which he was exposed and continued to- work relying upon the assurance of his superior that the same was safe; that the defendant knew, or by the exercise of ordinary care should have known, that to require the plaintiff to cut two pieces of iron so bolted together in said machine would expose plaintiff to the danger of receiving bodily injury.

After the introduction of the plaintiff’s evidence the court arrested the case from the jury and directed a verdict for the defendant, and to this order and ruling exception was taken, and the plaintiff preserved his rights in the usual form.

It appears by- the evidence that upon some previous occasion this plaintiff had (received another injury while operating the same machine. It does not appear as to just how that prior injury was caused, but it also- appears, and perhaps might fairly be inferred if it did not appear, that the plaintiff had some apprehension of injury at almost all times while operating this machine; and • indeed, in the very transaction which is the basis of this case, the plaintiff indicated by his conduct, as it seems to us, -a sort of nervousness or fear that injury to him might result from his work. There is no claim whatever of any defect in the machine itself. There is no claim that there was any negligence of any kind on the part of the defendant company, except as stated in the petition, “in requiring and requesting plaintiff to cut the two pieces of iron so bolted together.” There is no other charge in the petition thait the defendant was negligent in the giving of the directions which it is said the plaintiff received. It is alleged, to be sure, in the petition that he received assurances from the superior 'that it was safe to do the work in the manner described, or safe to cut two pieces of iron While bolted together; but he alleges that rather in the way of exonerating himself frc-m any charge cf contributory negligence than in the way of charging the defendant company with negligence in the mere assurance to him that it was safe to do the work in this way. The only allegation of negligence as against the defendant company that I can find in the petition is the allegation that the defendant was careless and negligent in requiring or requesting him to cut two pieces of iron so bolted together.

Now we think this was a danger incident to the business; that the danger was reasonably apparent; that the plaintiff did apprehend it; and, unless the case is analogous to that found in one of the decisions by our Supreme Court, the Van Duzen ease, the plaintiff would not be entitled to recover. The Van Duzen ease, reported in the 61st Ohio St., page ‘298, laid down a general proposition, which has been not seldom misapplied by counsel in the trial of personal injury eases, and an effort has been made to extend the doctrine therein expressed to eases which do not stand on, all fours with the case in which the doctrine was enunciated. That was a ease where the person injured had been peremptorily directed to go into' a place of danger, and the Supreme Court held in substance — I have not the case now before me — that where the danger was not so obvious as to have prevented any man of urinary prudence from obeying the order to do the hazardous work, he would not be prevented from Recovering against the company giving the direction to do the work, notwithstanding the fact that the danger was not a concealed danger.

I have before me the ease of Cleveland v. Wolf, decided bv the Cuyahoga Circuit Court in November, 1903, and reported in 2 C. C. — N. S., 126. The syllabus as it appears in 15 C. D., 406, is as follows:

“A charge to the jury in a.n action by a servant against the master to recover for damages resulting from the negligence of the latter is improper, which permits the jury to conclude that the servant would not be guilty of negligence, b'y reason of obeying general orders of the master, unless the danger of so doing was so obvious that -a man of ordinary prudence would not have exposed himself to it, and which wholly ignores the the question of assumed risk, it appearing from the evidence that plaintiff was engaged at the time in the performance of his usual and ordinary duties which he had been engaged in for several years for the master, and it also further -appearing that mo special or peremptory orders or instructions were given to the servant on the particular occasion. In such case, the court should define the kind of orders or instructions which would relieve the servant from the thought, care and scrutiny which he otherwise would be bound to exercise in the discharge of an ordinary duty which had in it certain elements of danger Which he assumed while so engaged.”

The judge announcing the opinion says on page 128:

“There was no evidence produced showing that Wolf was peremptorily ordered into the trench at the time he was hurt, lie himself says-, up-on cross-examination, that he always knew his duty and went d-own into the trench without being told, am-d tha-t the pipe was put in the trench that day in the same way -and in the usual manner of putting pipes in trenches. W-o-lf had worked for the city twelve or thirteen- years-, the first five -or six years in digging water pipe trenches, and the remainder -of the time in putting water pipes in position at the bottom of th-e trench and connecting them together — the very thing he started to do when he was injured. ’ ’

After some -consideration of these facts in -connection with the rule announced in the Van Duzen case, the court concludes that the proper rule is- set forth by the Supreme Court in the case of Northern Railway Company v. Rigby, 69 Ohio St., 184. 1 have this case before me -and deem it pertinent to the case at bar. I quote the decision of th-e court as .expressed in the syllah bus:

“In the trial of an action brought- by an employe, against a railway company, to recover for injuries sustained by the explosion of a car heater on a passenger coach, while -he was attempting to thaw out the frozen water pipes, while the ear was standing in the yards of the company; and where the evidence tends to prove that the heater was without a steam guage to the knowledge of the employe, and that the. explosion was caused by the use of -a solid plug in the drum of the heater instead of a safety valve, which plug was put in by the employe a few days before the explosion by direction of his superior; and where the evidence further tends to prove that the employe was an experienced foreman of car repairers and familiar with the. system of heating used on said car, and with the proper method .and means of thawing out the water pipes when frozen; and where the only order from the superior was 'a telegram to get the car ready for use; to charge the jury without further explanation, that ‘If you find at the time of the explosion and for several days prior thereto, there was no safety valve in the drum of the Baker heater in car 22; that said safety valve had been removed and replaced by a solid plug, and that Rigby knew pf these facts when he attempted to thaw out said heater at the time of the explosion complained of; and further, if you find that said explosion resulted wholly from the fact, that said drum had a solid plug instead of a safety valve, then Rigby would nevertheless be entitled-to recover in this action if you find by a preponderance of the evidence that in attempting to thaw out said heater, as he did, he was acting in obedience to a positive order' of his superior; that a person of ordinary prudence would, under the circumstances, have obeyed such order, and that in obeying such order he used ordinary care,’ is misleading and erroneous.

“Where the superior, while absent, sends an order to an employe to perform certain work or duty, but leaves to. such employe the selection of the. means and manner of performing the service, t'he doctrine of The Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St., 298, does not apply.”

I will not tarry to call attention to the reasoning of the judge to sustain the doctrine laid down in the syllabus by the court; but it is enough to say that the case at bar has many features paralleling those in the Wolf case decided by the Cuyahoga Circuit Court and the case to which I have just referred, the case of Railway Co. v. Rigby. The plaintiff in this case had been for some time employed in the" operation of this particular machine, and for a period of about six months he was in charge of it; he had had experience in the cutting of different kinds of iron, and. upon more than one occasion he had had occasion to cut bars or pieces of iron bolted together; 'and that he clearly apprehended some hazard from the work in which he was employed is very1 apparent from all the evidence. Now there is another circumstance, which to the mind of the court maltes the ruling of the court below entirely justified by the circumstances here. As I have said, the only negligence complained of was the giving the direction to this man to cut bars or pieces of iron when bolted together. The evidence clearly discloses that the machine did. not -at all times and under all circumstances work alike; that is to say, that the manner in which the machine would cut would vary with the hardness of the metal sought to be cut, with perhaps the size or length of the pieces and some other conditions. It does appear by the testimony that upon a prior occasion the plaintiff had been assured, in substance, by one Jones, his superior, that the work which he was then complaining about would be safe, and Jones went on and did it himself with apparent safety; he cut some pieces of iron which were bolted together without any resulting injury to himself, and the plaintiff saw him do- it; and up-on the assurance that it was safe, it is -possible that the plaintiff continued in the w-o-rk and thereafter without any instructions cut -all kinds of material when so bolted together. Whether they were precisely like the pieces which were cut by the superintendent, Jones, upon the occasion when-he gave the instructions to the plaintiff does not appear; that assurance, after all, was at the best but an opinion of -the superintendent; and the work was not s-o complicated, it was not so difficult to ascertain whether it was saf° o-r perilous, as to excuse the plaintiff from any observation for himself. It was emphasized to some extent by one witness that while it might be dangerous to cut steel when so bolted together, it might not be dangerous to cut iron.

Now the conditions when the superintendent gave the instructions may have been altogether safe conditions. lie did not say, so far as the testimony discloses, “You may go on cutting bars -of iron at all times and under all -circumstances when y-ou find them bolted together and y-ou can do- it with safety.” There was no assurance of that kind; no expression of opinion along that -line; but the only expression was that.upon that particular occasion, with that particular iron bolted together, just as it was, in the opinion of the superintendent it was. safe to do the work. It appears from the testimony of Marshka that the iron which did the injury was made up of a sort of strap or bar iron, and a round or cylindrical piece of rod about an inch in diameter which was bolted to it ait the ends. The rod or bar, whatever it was, that was cut by the superintendent, was only three-quarters of an inch thick. It does not seem to be a very great difference and yét it might be just the difference which would make the one operation safe and the other perilous. Again, the regulation of the speed of the machine might have something to do with the safety or the peril. Mr. Marshka in his testimony says that he could regulate the speed of the machine. There are so many circumstances that are to be taken into account in the determination as to whether the instructions were negligent or not, and there was. such an utter failure to show that the- conditions were precisely the same on the day in March when Marshka received the injury and the prior occasion when the superintendent gave the instruction, that the court was justified in not permitting the case to go to the jury and allow the jury to guess that the instruction was to be construed as one applicable to the work on the day of the injury and with the materials which were then to be operated upon. Again, applying the principles of the Wolf case and the Rigby ease already cited, there was no peremptory order on the day of the injury to go into a place of danger; he was simply doing the work as in the Wolf case, as stated by Judge Winch of the Cuyahoga Circuit, in the usual way of doing it, the way he had been accustomed to do it for months. There was no special direction upon that occasion. The hazard seems to have been altogether apparent, -and we think that it is the kind of a hazard which was assumed when he accepted the employment, and with regard 'to which it is to .be presumed that his compensation was fixed. Under all the circumstances we think that the court did not err in arresting the ease from the jury and directing a verdict for the defendant.

G. A. Thatcher, for plaintiff in error.

Holbrook & Monsarrat, for defendant in error.

The judgment will be affirmed without penalty.  