
    No. 17895
    George Kuhn v. The Cincinnati Traction Company.
    Error to the Court of Appeals of Hamilton County.
    1283. WORKMEN’S COMPENSATION — It is error, in action against him for damages, to refuse to allow employer opportunity to show compliance with statutory duties, under 871— 13, 15 and 16 GC., as to provisions to preven 13, 15 and 16 GC., as to provisions to prevent injuries.
    2. Word “sound” as used in Sub. 4, 1027 GC., means same as “safe” as defined in 871-13 GC., as to freedom from danger.
    3. Under this section, employer may show he has met the require ddegree of care.
    4. Instruction to jury as to the required safety of an elevator should have included also that breaking down was due to some violation by employer of a statutory duty in regard thereto.
   DAY, J.

1. In an action for damages for personal injury against an employer who has paid into the Workmen’s Compensation fund, for alleged violation of Subdivision 4 of Section 1027, General Code, providing that an employer “shall make suitable provisions to prevent injury” and shall “examine frequently and keep in sound condition the ropes, gearing and other parts of elevators,” and for failure to provide a safe place to work, and for failure to use safety devices and safeguards, as provided in Sections 871-13, 871-15 and 871-16, General Code, it is error to refuse such employer opportunity to show compliance with such statutory duty.

2. While it was the duty of the employer “to examine frequently and keep in sound condition the ropes, gearing and other parts of elevators,” the statutory duty would be discharged if there was frequent examination by the employer, and the ropes, gearing and other parts of the elevator were kept as free from danger to the life, safety and welfare of the employe using the elevator as the nature of the employment would reasonably permit, and if the employer furnished, provided and used safety devices and safeguards and adopted and used methods reasonably adequate to render the use of such elevator safe within the meaning of the statute. The word “sound,” as used in Subdivision 4 of Section 1027, has the same significance as the word “safe,” as defined in Section 871-13, to-wit, as free from danger to the life, safety and welfare of the employe as the nature of the employment will reasonably permit.

3. Subdivision 4 of Section 1027, General Code, does not create an absolute liability, nor constitute an insurance of the safety of an employe, but, in an-action based upon a violation of..such subsection, an employer may show by way of defense that he has met the degree of care required by statute.

4. In an action for violation of Subdivision 4 of Section 1027, an instruction that “it was the duty of the defendant to provide and maintain an elevator sufficient in all its parts so that when used for the purpose intended and in the manner intended, it would not break” is erroneous unless the jury be further instructed that such breaking was due to some violation by the employer of a statutory duty in that regard.

Judgment modified and affirmed.

Marshall, C. J., Wanamaker and Allen, JJ., concur.  