Paul A. Sorg Paper Co. v. Hayes , 43 Ohio App. 140 ( 1932 )

The action was brought for the recovery of damages for the wrongful death of David Hayes, deceased. The suit was brought under the statute, by the administratrix of the estate of David Hayes, for the benefit of the next of kin, his surviving widow and three children.

Hayes was a master plumber, and was in the employ of the John Arpp Company of Middletown, Ohio. The John Arpp Company had a contract with the defendant, the Paul A. Sorg Paper Company, plaintiff in error here, concerning the plumbing work in the Sorg Company's mill.

Along the side of the mill the paper company maintained a room which contained large tanks for the heating of water for the use of the paper company. The room extended out from the mill over a railroad track and was approximately 35 feet above the ground. The room was supported by steel girders on uprights, set in concrete. On the day of the accident, the Arpp Company, pursuant to its contract with the paper company, was engaged in doing certain plumbing in the room where the water tanks were located, as above stated. Hayes, an employee of the Arp Company, was directed to do the plumbing work desired.

It is alleged that the paper company knew that to do the plumbing work desired it was necessary for the workmen to enter the room above described, and to stand and work on the floor of the room. Hayes, while engaged in the work, was standing or walking on the floor, in the performance of his duties, when suddenly, without warning, the floor collapsed, broke loose, gave way, precipitating Hayes to the railroad track below, and so severely injuring him that those injuries resulted in his death later in the day.

In substance, the negligence charged is the failure of the paper company to inspect, maintain, and keep in proper repair the room and the floor in question, so that at the time the same were unsafe for the performance of the work in which Hayes was engaged; that the wooden portion of the floor had become weak, worn, rotten, and decayed, and that the nails and other metallic fastenings of the floor had become defective, corroded, rusted, and would no longer hold; that by reason of the defendant company's negligence the room and floor were in a defective, unsound, and dangerous condition, and that the defendant company knew, or in the exercise of ordinary care should have known, of the dangerous condition; and that by reason of the carelessness and negligence as alleged, the floor broke and fell, and caused the injuries which resulted in the death of Hayes.

The paper company answered, admitting the appointment of the administratrix and the corporate existence of the defendant company, that the plaintiff's decedent was in the employ of the John Arpp Company, as alleged, and that the John Arpp Company performed the plumbing and heating work of the paper mill of the defendant company, under contract. It denied generally the other allegations of the petition.

The case was tried to the court and jury, resulting in a verdict of $15,000 for the plaintiff administratrix. Motion for a new trial was overruled, and judgment was entered on the verdict. From that judgment, the paper company prosecutes error to this court, seeking a reversal for the errors hereinafter mentioned.

The evidence established the faulty condition of the floor, lack of inspection, and the happening of the accident.

The first contention is that the plaintiff has failed to prove any pecuniary loss or dependency of the next of kin.

The plaintiff proved that the decedent left a widow and three children, and that they lived together in the home of the deceased.

It is true there is evidence to the effect that at least two of the children were wage-earners and all had reached their majority.

The evidence is that the decedent was 48 years of age, a master plumber, in good health, a good, careful workman, and earned $55 per week. This evidence is sufficient to authorize substantial damages, if liability is shown.

In the case of Chester Park Co. v. Schulte, Admr., 120 Ohio St. 273, at page 291, 166 N.E. 186, 191, the court in the following language approved the charge of the trial court:

"The charge of the court in the instant case on the measure of damages was entirely free from error:

"`You may award such damages as you may think proportionate to the pecuniary injury resulting from the death to those for whose benefit the action was brought, that is to say, you may award such damages as the persons for whom this action is brought might reasonably have been expected to have received from the earnings of the deceased had he lived and from his estate at his death.'

"This charge was very carefully patterned after the provisions of Section 10772, General Code. In actions for wrongful death, there are no definite standards for determining the amount which the beneficiaries might reasonably expect to receive, and the amount is purely matter of opinion, and in no sense matter of computation."

See, also, Cincinnati Street Ry. Co. v. Altemeier, Admr.,60 Ohio St. 10, 53 N.E. 300; Ellis v. Twiggs, 32 C.D., 96;Cincinnati Traction Co. v. Beebe, Admr., 3 Ohio App. 213;Ochsner, Admr., v. Cincinnati Traction Co., 107 Ohio St. 33,140 N.E. 644.

These cases also answer the objection to the charge of the trial court in submitting the measure of damages.

Another ground of error suggested by the plaintiff in error is that the decedent was guilty of negligence in not investigating how much weight the floor could sustain, and that, if he failed in this, he was guilty as a matter of law of contributory negligence. If the dangerous condition was obvious or patent, there would be merit in this contention. There is nothing, however, in the record to suggest any patent defect. The fact is that Tracy, the superintendent of power in the mill of the paper company, testified that on the day in question he and two other men had stood on the floor and it had withstood their weight. In support of this proposition, however, counsel cite and rely on the case of Libbey Glass Co. v. Gronau, 116 Ohio St. 404,156 N.E. 500. This case, however, has no application to the case under consideration. In the Libbey Glass Company case, Gronau went upon the roof to tighten some guy wires to a smokestack. The covering of the roof consisted of asbestos strips, which extended along the roof and were fastened to steel rafters, or furlines, underneath, which were about three feet apart. Because of the character of the roof it became necessary for the workman engaged, in order not to fall through, to confine his steps to the more solid portions of the roof where the asbestos was cleated down to the furlines. Gronau, the plaintiff in the Libbeycase, charged the company with negligence in failing to make the roof safe for an employee to go upon for the repair work which Gronau was required to do, and in failing to warn Gronau of the condition of the roof. The Supreme Court, in a Per Curiam opinion, quotes from the testimony of Gronau as follows, at page 406 of 116 Ohio State, 156 N.E. 501:

"Q. Well, as a matter of fact, it didn't look very solid to you, did it? A. Well, it looked old.

"Q. Now answer my question directly, please; it didn't look very solid either, did it? A. No, sir.

"Q. And you knew that before you started down, didn't you? A. Yes, sir.

"Q. And you had been told to be careful? A. Yes, sir.

"Q. And you now say you didn't think anything at all about the danger or safety of the place while you were on that roof? A. No, sir.

"Q. And notwithstanding that warning to be careful, and the fact you knew the roof looked old and not solid, you didn't think about your safety in any way whatsoever when you started down that roof, did you? A. No, sir."

The foreman of the work testified that, just before Gronau and a fellow workman went on the asbestos roof, he told Gronau to "watch your step" or "watch yourselves," and Gronau admitted that before starting up Casey had told him to be careful about the roof, and cautioned him to be careful. He also testified that his fellow workman, Kramer, ascended the roof by taking what he called the safest way; that, in descending, Kramer, his fellow workman, led the way, Gronau following. He testified that he started down after Kramer for a short distance upon the roof, but that in his descent he deviated from the route that Kramer took, stepped to one side upon the asbestos covering, and fell through to the ground below.

There is no evidence whatsoever in the case under consideration upon which to apply the decision in the Libbey Glass Companycase.

Another ground of error suggested is the exclusion of a certain photograph of the room in question, offered by the defendant. Several photographs were introduced and submitted, and the submission of the photograph in question would have been merely cumulative. There was no abuse of discretion on the part of the trial court in excluding this photograph.

Error is also predicated upon the refusal of the trial court to give defendant's special charges Nos. 1 and 3.

In defendant's charge No. 1, refused, it is assumed that the flooring in question was a false flooring. While counsel frequently in the trial of the case used the term "false flooring," the evidence does not bear out the claim that the floor was a false flooring, and in any event there is no explanation as to what service the false flooring would be put. It therefore assumes a fact which is not in the case, and was properly refused.

Defendant's special charge No. 3, refused, is as follows: "If you find from the evidence that the plaintiff's decedent's own knowledge of the danger surpassed or equaled that of the defendant's then you must return a verdict for the defendant even though you should further find that the flooring of the defendant's boiler room was in an unsafe and dangerous condition and that by reason thereof the plaintiff's decedent received the injuries plaintiff complains of."

This charge was properly refused. It assumes that the decedent knew of the danger, of which there is no evidence whatsoever. If the decedent, knowing of the dangerous condition and weakness of the floor, and notwithstanding that knowledge, went upon the same, this would bar recovery. It is immaterial whether his knowledge was equal to that of the defendant, or surpassed it, or was less; if he had knowledge of the danger, and, notwithstanding that knowledge, went upon the floor, the recovery would be barred on the ground of contributory negligence.

The decedent owed no duty to inspect and was only bound to observe obvious or patent defects. Were the plaintiff in error's contention correct, every workman would be required to make detailed inspection of his place to work, and this would overturn the rule that the employer must furnish a safe place for the employee to work.

Our conclusion is that there is no prejudicial error in the record, requiring a reversal of the case.

The judgment of the court of common pleas is affirmed.

Judgment affirmed.

ROSS, P.J., and CUSHING, J., concur.