
    Hauer, Admr., v. French Brothers-Bauer Co.
    
      (Decided November 23, 1931.)
    
      Messrs. Hauer, Topmoeller & Arnold and Messrs. De Camp, Suiphin é Bnmleve, for plaintiff in error.
    
      Mr. Harry Neal Smith, for defendant in error.
   Hamilton, J.

This is an action for wrongful death. Edward C. Hauer, administrator of the estate of Anthony J. Hartman, deceased, sued the French Bros.-Bauer Company, a corporation, to recover for the claimed wrongful death of said Anthony J. Hartman.

The decedent was an employee of the Johns Man-ville Company, which company was engaged in covering brine pipes for the French Bros.-Bauer Company on the third floor of the company’s building at Plum street and Central parkway in the city of Cincinnati. He went to the third floor of the building and engaged in the work about nine o’clock in the morning. His helper, Joseph Molloy, was on a lower floor, occupied in preparing materials for the work. Shortly thereafter Molloy heard that the decedent was hurt near the pipe which decedent was preparing for covering. Molloy found the decedent lying between two tanks. Blood was on the floor and walls at this point, and decedent’s clothing was torn. He was taken to the General Hospital, where he died the following day.

Near where the decedent was injured were five tanks that were about three or four feet from the west wall of the building and a few feet apart. Between these tanks and the wall was an unguarded, uncased, and unboxed shafting with pulleys and belts for each tank. This shafting was about two feet from the wall and about one and one-half feet from the floor. The brine pipe which decedent was preparing for covering was located between this unguarded shafting and the wall, and was about eight to ten inches from the floor and ran the full distance of the tanks. The brine pipe was somewhat lower than the shafting, and could be reached only by stooping over the shafting.

No one saw the accident occur.

These facts were in substance the plaintiff’s evidence bearing on the question of defendant’s negligence.

At the close of the plaintiff’s evidence, the court granted a motion for an instructed verdict for the defendant, the French Bros.-Bauer Company. Judgment was entered on the verdict, and error is prosecuted to this court, seeking a reversal of that judgment.

The trial court granted a motion for non-suit presumably on the proposition of failure of proof of the cause of the injury and/or the assumption of risk by decedent.

Under Section 1027, paragraph 1, General Code, the defendant, the French Bros.-Bauer Company, owed the duty to case or box all shafting located horizontally near the floors. This it failed to do, and this failure constituted negligence.

Under the provisions of Section 871-13, paragraph 5, and Sections 871-15 and 871-16, General Code, the defendant, the French Bros.-Bauer Company, owed this duty .to the decedent, for the reason that he was a frequenter on the premises and not a trespasser.

It is argued that the decedent assumed the risk by going into this place of danger. The doctrine of assumption of risk, as we understand it, has always been held to apply in a suit between an employer and an employee, and would have no application to an employee of an independent contractor. On this proposition we cite 39 Corpus Juris, 708, and cases there cited; also, 18 Ruling Case Law, 696, Section 180, and cases cited. However that may be, we are of opinion that the doctrine of assumption of risk no longer obtains in view of the statutes above referred to, which are designed for the protection and good of the whole community. If this proposition were to obtain, it would nullify the object of the statutes, which is to protect frequenters, as well as employees of the owners or operators, against unprotected machinery.

The record discloses proof of the maintenance of the unprotected shaft, contrary to law, by the French Bros.-Bauer Company.

"We have found there was no assumption of risk from the decedent being on the premises.

No presumption of contributory negligence is raised by the evidence of the plaintiff, and since there was no evidence offered on behalf of the defendant, no contributory negligence was shown. This answers the proposition that the decedent might have turned off the switch, thereby stopping the shaft while he was at work.

There is, however, a dearth of evidence on the question of how the accident happened. In other words, was the maintenance of the unprotected shaft the proximate cause of the injury? No one who was called to testify saw the accident. No one saw the position of the decedent with relation to the unprotected shaft. The only evidence on the proposition is that he was seen lying on the floor away from the shaft. At the close of plaintiff’s evidence; there was no evidence connecting his injury with the shaft, except that near the shaft was some blood, and decedent’s clothing was torn.

The plaintiff below filed a motion for a new trial, and newly discovered evidence was one of the grounds urged. He presented the deposition of one Fisher, who testified in his deposition that he heard a grinding noise and the stopping of the turning of the shaft; that, on investigating, he found the decedent wound up in the shaft; that long pieces of twine which were attached in some way to the person of the decedent were twisted around the shaft, and had pulled the decedent into the shaft; that he cut the decedent loose and laid him on the floor in the room in which he had been working; that he was later taken to the hospital.

The reason Fisher was not called at the trial is set forth in the affidavit, which states that since the trial of the case plaintiff discovered a witness who lives outside the jurisdiction of the court and outside the state of Ohio, which witness realized that the machinery in the shafting was not working properly, and, upon investigation, discovered Hartman caught in the shafting and released him. There was no counter affidavit filed, and no claim was made of lack of diligence on the part of the plaintiff’s counsel in procuring the witness. The witness was the witness Fisher, who, in his deposition, stated all the facts necessary to connect the decedent’s injury with the unprotected shaft.

The trial court should have granted the motion for a new trial on the ground of newly discovered evidence. Without such proof, plaintiff could not recover. Had the proof tendered on the motion for a new trial been produced at the trial, it would have required the submission of the case to the jury, the absence of which defeated the plaintiff.

The importance of this is further shown in the record in the rulings of the court on the admission of evidence, where the plaintiff’s witness Waterman was being interrogated by counsel for plaintiff:

“Q. Where was Mr. Hartman when you first saw him? A. He was out in the room along the north wall, just a short way from the door that goes up from the stairway on the floor. He had some hair felt there and he was laying on the hair felt.

“Q. Was it the same room in which the tanks were, or in another room? A. In the same room.

“Q. Was he conscious when you saw him? A. Yes sir.

“Q. Do you recall what he said at that time?

“Mr. Smith: I object, if Your Honor please.

“The Court: That would not be res gestae, in other words, you have not established a res gestae declaration.

“Q. Were you there alone with Mr. Hartman, at the time you saw him lying on the floor? A. No sir.

“Q. Who else was there? A. Oh, there was anywhere from six to a dozen people that were attracted there — that came there.

“Q. Did he say anything to you in regard to how the accident happened?

“Mr. Smith: I object.

“The Court: The objection is sustained.”

The ruling out of this declaration was error. See Taylor v. Industrial Commission, 13 Ohio App., 262, and cases therein cited.

Had there been an exception reserved by counsel to these rulings on the tender of the declaration of the decedent as to how the accident happened, and error claimed, it would require a reversal of the case on that ground. The record does not disclose that any exception was taken, and the ruling on this question is not argued as a ground for reversal. Had this evidence been admitted, Fisher’s evidence, as indicated in his deposition, would not have been ground for reversal, as it would have been but cumulative.

This is sufficient to indicate that this newly discovered evidence was vital to the plaintiff’s case.

For error in overruling the motion for a new trial, on the ground of newly discovered evidence, the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Ross, P. J., and Cushing, J., concur.  