CARE REQUIRED BY OWNER OF PREMISES FOR SAFETY OF EMPLOYEE OF AN INDEPENDENT CONTRACTOR.

Court of Appeals for Lucas County.

(Show, P. J., and Hamilton and Cushing, JJ. of the First District, Sitting by Designation in Place of Kinkade, P. J„ and Richards and Chittenden, JJ., of the Sixth District.)

#### The National Machinery Company v. Charles D. Towne.

Decided, June, 1919.

*Negligence ancl Assumed Risk*— Employee *Sent to Rapair Windows of a Factory*— Injured *Toy a Traveling Crane*— Degree *of Care Required of Proprietor for the Safety of a Contractor’s*Employee— *Charge of Court*— Proximate *Cause.*

1. A landowner owes to an employee of an independent contractor, who is rightfully on his premises, the duty to use ordinary care not to injure him.

2. Where plaintiff, an employee of an independent contractor, with de. fendant’s knowledge used the track of a traveling crane in making repairs on defendant’s factory building, plaintiff did not assume the risk of defendant’s negligence in operating the crane on such portion of the track where plaintiff was standing, without notice to him.

3. The promise of the operator of the traveling crane to plaintiff, while it created no new obligation on the part of defendant, was a proper element to be considered in determining whether the conduct of plaintiff was that of a reasonable man.

1. The negligence of plaintiff, to bar relief, must proximately cause the injury.

5. The word accident, as used in actions for damages for personal injuries, sometimes means an occurrence to which human fault does not contribute; and the court did not err in refusing to give a special charge so characterizing the occurrence.

6. Where instructions are requested by a party after argument, the court is not required to use the precise terms or language submitted; it is sufficient if the substance thereof be given in other instructions or in the general charge.

*226*Roger & Spitler, McCauley <& Weller, Marshall & Fraser,*for plaintiff in error.

*Kohn, Northup <& McMahon,*contra.

Shohl, P. J.

Defendant in error, Charles D. Towne, was employed by one Arthur O. Souders, who was an independent contractor making some repairs on the factory building of The National Machinery Company of Tiffin, plaintiff in error. He was putting flashing in some windows and was standing inside the building on the track of a traveling crane, when he was struck by the moving crane and injured.

The petition alleged that the traveling crane was 30 to 35 feet above the ground, tracks being approximately 35 feet apart and constructed about the room near certain ventilating windows; that the crane could be easily moved or stopped by the defendant; that the plaintiff was employed by a third person as roofer and roof repairer; that it was necessary for him to stand upon the track and make repairs on all the windows; that immediately before he took his position on the track, he was informed by the defendant that defendant would beep a lookout for him, if the crane was to be moved, and would give him ample signal by bell so that he could remove himself tc a place of safety. At the time he was injured he was standing with his back to the crane, as it as necessary for him to do to make the said repairs; that the operator of the crane, without any warning or signal to him, negligently started and propelled the crane and ran it upon and against the plaintiff. After reciting the injuries received, it avers:

> “Plaintiff says that the defendant negligently caused said crane to strike and crush plaintiff's legs as aforesaid, in that it propelled said crane upon him without giving any warning or signal whatever of its intention so to do, and plaintiff did not see and did not hear said crane as it was propelled upon him, and had no opportunity whatever to remove himself to a place of safety. That said defendant in the exercise of ordinary care would have seen plaintiff and would have given him timely warning before injuring him as aforesaid.”

*227The defendant filed an answer denying the substantial averments of negligence, and, by way of second defense, alleged that if the plainiff: was injured at the time and place alleged in the petition, such injuries were caused solely and proximately by his own carelessness in that he voluntarily and needlessly, without the advice, direction or knowledge of the defendant, suddenly placed himself in front of the crane, which, as the plaintiff well knew, was a place of great danger, which he also knew was constantly moving from one end of the building to the other along a rail; that the operator of the crane would not know and did not know that the plaintiff was at that time near or in front of the crane in a place of danger; notwithstanding the said knowledge, plaintiff placed himself immediately in front of said crane and carelessly turned his back on it and exercised no care to learn its movements, and in placing himself in this danger, he, without any warning to defendant, climbed into one of the ventilating windows in the roof of the building so that the operator of the crane, in the exercise of ordinary care and in the exercise of his duties, would not, could not and did not know of his presence there.

The reply denied the allegations of new matter contained in the answer.

The case was tried twice. At the first hearing a verdict was rendered for the plaintiff for eight thousand dollars, and that was set aside by the trial court for misconduct of a juror. The second trial took place in January, 1919. There was a conflict in the evidence, which it will not be profitable to set out at length. The jury rendered a verdict for plaintiff for fifteen thousand dollars.

Plaintiff in error contends that defendant in error was guilty of contributory negligence, or assumed the risk of injury by exposing himself to an obvious and appreciated danger. It is not vital to determine whether the doctrine of assumed risk, as distinguished from contributory negligence obtains in Ohio in cases that do not arise out of the relation of master and servant. See 5 Corpus Juris, 1413 and 14. The risk Avhich Towne would have assumed, if the doctrine of assumption of risk was appli*228cable, is the risk of working in a dangerous place. He did not assume the risk of defendant’s negligence in operating the crane, on the part of the track where he was .standing, without notice to him. *Standard Steel Car Co.*v. *McGuire,*161 Fed., 527. Bui whether the defense be regarded as assumed risk or contributory negligence, the situation must be considered in connection with the alleged conversation between the plaintiff and Negele, the operator of the crane. Plaintiff testified to the allegations of the petition in respect to the promise by Negele to warn him. that Negele said he would give him warning and lookout for him.

Negele was without authority to extend an invitation to an outsider, who would otherwise be a trespasser or licensee on the premises. *Curtis*v. *Stone Quarries,*37 Wash., 355, 362; *Macartney*v. *Coldwell,*29 R. I., 21; *Formall*v. *Standard Oil Co.,*127 Mich., 496. See 6 Labatt on Master and Servant, Sec. 2500.

' It must be borne in mind, however, that Towne was not a trespasser and was rightfully on the premises, independent of any invitation from Negele. 1 *Thompson on Negligence,*2nd Ed., Secs. 680, 979; *Penn Co.*v. *Gallagher,*40 O. S. 637, 644.

If Negele did in fact tell plaintiff that he would lookout for him and would warn him before moving the crane, even though that created no duty on the part of the company, it would have bearing and would be entitled to weight in the determination of whether Towne’s conduct under all the circumstances was that of a reasonable man. If the jury believed and found that Negele had spoken as Towne testified, the conduct of Towne in working with his back to the crane and without looking around at frequent intervals, did not constitute negligence as a matter of law. It presented a question for the jury. We cannot say therefore that the judgment is contrary to law, nor in view of the entire record is it so manifestly against the weight of the evidence as to warrant a reversal on that ground.

Complaint is made because the court gave certain special charges before argument among which are the following:

> No. 7. “The fact, if you should so find it to be, that the work Towne was doing could be done as well from the outside *229of the window as from the inside is entirely immaterial if his presence was known to Negele at the time of starting the crane just prior to the time that Towne was injured, or if Negele in the exercise of ordinary care would have known of Towne’s presence on the track.”

> No. 14. “If you find from a preponderance of the evidence that the cranesman, Negele, knew that said plaintiff and other persons were engaged the morning of the accident and prior thereto, in working upon said track, then I charge you that it was the duty of said cranesman to exercise .ordinary care toward them and if you find from a preponderance of the evidence that he did not exercise ordinary care toward them, and thereby the plaintiff was injured, you will be warranted in finding that defendant was negligent.”

> No. 18. “The defendant owed the duty of using ordinary care towards Towne independently of-promises on the part of Negele. So whether Negele promised Towne to watch out for him and give warning by gong, or did not so promise, nevertheless if he failed to use ordinary care towards Towne in the operation of the crane and thereby solely and directly caused the injury to Towne, Mr. Towne is entitled to a verdict at your hands. ’ ’

> No. 18. “The defendant owed a duty to Towne not to negligently bring force to bear upon him. It owed this duty independently of any promise on the part of Negele or any other person and if the defendant negligently brought force to bear upon the plaintiff, it is liable for whatever damages were directly and proximately caused thereby.

> “In this connection I say to you that the negligence of Negele, if any there was, was the negligence of the defendant company.”

Charge No. 7, fairly construed, does not assume the presence of plaintiff on the track to have been established as prohibited by the rule set forth in *Cline*v. *State,*43 O. S., 332, and *Weybright*v. *Fleming,*40 O. S., 52. It states the law applicable if the jury found that plaintiff was in fact on the track. Nor is it otherwise incorrect in the case at bar. The defendant had actual knowledge of Towne’s presence on the premises. He was rightfully there. They owned to him as the employee of an independent contractor the duty to use ordinary care. 1 Thomp*230son on Negligence, 2nd Ed., and Supplement, Sec. 979; *Penn Co.*v. *Gallagher,*40 O. S., 637; *Kelly*v. *Howell,*41 O. S., 438; *Graham*v. *Brandt Shoe Co.,*165 Mo. App., 361; *Winona Technical Inst.*v. *Stolte,*173 Ind., 39, 48.

The ease is distinguished from that of a trespasser or person who is wrongfully on the premises of another as in the ease of *Erie R. R.*v. *McCormick,*69 O. S., 45. See *Railroad Co.*v. *Harvey,*77 O. S., 235, 240. Having knowledge of his presence, their duty to use ordinary care might be found by the jury to include an obligation, to keep a lookout for him under the conditions shown in the case at bar. *Standard Steel Car Co.*v. McG*uire,*161 Fed. 527.

Charge No. 14 is not seriously objectionable as tending to confuse the jury by reference to the duty of the eranesman to other persons. The jury could not have been misled. Nor was the court wrong in charging the jury on the law applicable if Negele knew beforehand that plaintiff was working on the track. Though it was not alleged in the petition, the court might properly charge respecting the situation developed by the evidence. Ray*land Coal Co.*v. *McFadden,*90 O. S., 183.

Charges No. 18 and No. 19 were correct statements of law for the reasons already stated in the consideration of the evidence as to the promise of Negele in its bearing on the points hereinbefore discussed.

'The court refused certain special charges requested by defendant before argument.

> No. 8. “If the plaintiff in any degree directly contributed by any act of his to bring about this accident then your verdict must be for the defendant.”

The negligence of plaintiff to bar relief must proximately cause the injury. *Schweinfurth*v. *Railway,*60 O. S., 215. This was not made entirely clear by the charge in the form requested. Furthermore, the occurrence is characterized as an “accident.” The word “accident,” as used in actions for damages for personal injuries, sometimes means an occurrence to which human fault does not contribute, 1 Corpus Juris, 390-392, and the use of the word might tend to mislead the jury.

*231Charge No. 9 as requested is:

> No. 9. “If the work of nailing- on the tin Hashing could have been as conveniently and safely done from the outside of the building, then your verdict must be for the defendant.”

If counsel were aiming to state the rule as laid down,. in *Schaefler*v. *Sandusky,*33 O. S., 246, to the effect that whoever voluntarily and unnecessarily encounters a known and easily avoidable peril, cannot be regarded as exercising ordinary prudence, then the foregoing charge is not within it. If the charge requested were correct, it follows, that if it were equally convenient and safe to do the work from the inside as from the outside, a plaintiff could never recover no matter where he worked if his choice of sides resulted in injury.

After argument the defendant requested the court to charge:

> “You are instructed that if the plaintiff by a failure to exercise ordinary care for his own safety directly and proximately contributed to produce this injury,- then your verdict must be for the defendant. You are further charged that if this accident was caused by the joint negligence of the defendant and plaintiff, that negligence of both parties combined to produce the result, then your verdict must be for the defendant.”

Even if the instruction requested is proper, unless counsel comply with Section 11447 and present it in writing before argument, the court is not required to give it in the precise terms or language as submitted. It is sufficient if the substance thereof be given in other instructions or in the general charge. *Rheinheimer*v. *Aetna Life Ins. Co.,*77 O. S., 360. The language of the instruction requested was not altogether fortunate. There was no “joint” negligence alleged or proved. If counsel had in mind concurrent negligence, the court charged properly upon that point.

Complaint is made that in explaining the law as to the negligence of both parties the court charged on the effect of the negligence by plaintiff using the phrase “the proximate cause.” With reference to the negligence of plaintiff the phrase ‘ ‘ a prox*232imate cause” would probably have been clearer. The court stated that if the jury find from the evidence that the defendant was guilty of negligence, and, if they further find the plaintiff was guilty of negligence and that this latter negligence contributed to and was the proximate cause of the injuries, the verdict must be for the defendant. The court further charged that if the negligence of the plaintiff was the *sole*cause of his injuries, he could not recover. Taking the charge as a whole it is apparent that the phrase *“the*proximate cause” was not used to mean “the sole, proximate cause.”

The court said in another part of the charge that the negligence of the plaintiff would bar recovery if it was the proximate and immediate cause of the injury. Plaintiff in error complains .of the use of the word “immediate.” The negligence that defendant charges against plaintiff consisted in suddenly placing himself in front of the approaching crane. The issue on that point was simple. Under all the circumstances, the use of the phrase “proximate and immediate cause” in its context meant no more than “proximate cause.” See *Lonabaugh*v. *Ry. Co.,*9 Nev., 271, 294, *Kline*v. *Ry. Co.,*37 Cal., 400, 406; *Fitch*v. *Ry. Co.,*45 Mo., 322, 327.

The verdict and judgment were for fifteen thousand dollars, which it is contended is excessive. We will not attempt to set out the evidence in respect to the extent of the injuries, the pain and suffering, and the earning capacity of the plaintiff before and after the injury. Upon consideration of all the evidence, facts and circumstances, the court finds that a verdict and judgment in excess of ten thousand dollars should not be allowed to stand in the case. Accordingly, if counsel for plaintiff in error will consent to a remittitur in the sum of five thousand dollars the judgment, as modified, will be affirmed; otherwise it will be reversed and a new trial ordered.

Hamilton and Cushing, J. J., concur.