#### Kuhn *v.*The Cincinnati Traction Co.

*Negligence*— Workmen’s *compensation*— Civil *liability of employer*— Compliance *with safety statutes admissible, when —Keeping elevator in sound or safe condition*— Section *1027, General Code*— Absolute *liability not created or safety insured, when*— Proof *of care by employer*— 'Violation *of lawful requirement*— Charge *to jury*— Maintenance *of elevator by employer.*

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,” that 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 employee 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 employee 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 *264the safety of an employee, but, in an action based upon a violation of such subdivision, 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.

(No. 17895

Decided January 29, 1924.)

Error to the Court- of Appeals of Hamilton county.

The plaintiff in error, George Kuhn, brought suit in the court of common pleas of Hamilton county, Ohio, against the Cincinnati Traction Company, defendant in error, seeking to recover damages for personal injuries sustained by him from the fall, of a freight elevator, which was being operated by him, in one of the plants of the defendant in error, in Cincinnati, Ohio. At the time of the accident plaintiff in error was an employee of the traction company, and he was injured in the course of his employment. The traction company is an Ohio corporation, and at the time of the grievances complained of employed more than five employees regularly in the same business. It duly made payments into the state insurance fund and had otherwise complied with all the.provisions of the Workmen’s Compensation Law, and was authorized to directly compensate its em *265ployees for injuries received in the course of their employment.

Plaintiff in error, Kuhn, refused to accept compensation under the Workmen’s Compensation Act and elected to bring suit against the traction company for damages, and it was and is necessary for him, in order to maintain his action, to show that the traction company failed to comply with a “lawful requirement,” as the term is used in Section 1465-76, General Code, and that the traction’ company violated the provisions of Sections 1027, 871-13, 871-15, and 871-16, of the General Code.

The petition recites:

“Plaintiff' says that the defendant failed and neglected entirely to examine frequently and to keep in sound condition the ropes, gearing, and other parts of said elevator, and particularly the part hereinafter set forth; * * * and plaintiff states that he relied entirely upon defendant to provide him with a safe place in which to work and to protect him against any danger or injury that might result from the failure of the defendant to comply with the laws of Ohio aforesaid. # * *

“Plaintiff states further that the injuries so suffered by him arose from the willful act of the defendant in failing to comply with the laws of Ohio, 104 Ohio Laws, at page 194, in that it failed to provide the protection and safety due plaintiff under said laws in this, to-wit, that it failed io provide a suitable safety brake, and that it failed to provide a socket of sufficient strength to hold the elevator cable to the cab, and that said ele*266vator was defectively constructed in this, to-wit, that the guides or tracks thereof were made of wood and were not of sufficient strength to permit the safety device to operate so as to prevent the car from falling when the accident hereinbefore complained of occurred, and plaintiff says further that by long and excessive use of said elevator the same had become weakened and of not sufficient strength to perform the work required of it in elevating the coal as aforesaid.”

The answer of the defendant claimed the rights authorized by the Workmen’s Compensation Act of Ohio, and, having made certain admissions as to the kind of work that Kuhn was doing, entered a general denial of every allegation of the second amended petition not specifically admitted to be true.

Upon the issues thus tendered the parties went to trial.

The position of the trial court is shown by the following excerpts from the charge:

“The court charges you 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, and if the elevator was thus sufficient and the plaintiff was injured while operating it through some happening not attributable to any such insufficiency in any part of the elevator, then the defendant would not be liable.

“On the other hand, should you find that through some defect in the appliance coupling the cab to the cable, dr through some insufficiency in the tracks or guides used in connection with the safety *267brakes, either because the timber was not of sufficient strength or was not securely fastened, or should you find that through the combination of said causes the cab fell while being operated for the intended purpose and in the manner intended, then the court charges you that the defendant is liable to the plaintiff for such damages as resulted proximately to him therefrom.

“If- you find that the defendant did furnish an elevator sufficient as aforesaid, then your verdict will be for the defendant. If the evidence is evenly balanced on that point, your verdict must likewise be for the defendant.

“On the other hand, if you should find by a preponderance of the evidence that there was a defect in the socket or clevis coupling the cab to the cable, or if you should find that the tracks or guides aforesaid were so insecurely fastened, or the material was so weak that they broke when subjected in the manner intended by the defendant to a load not greater in weight than said elevator was designed and intended to carry by the defendant, or if you should find by the preponderance of the evidence that through the combination of said causes and as a proximate result thereof the cab fell and plaintiff, falling with it, was injured, then the defendant is liable to the plaintiff and your verdict must be for him. In that event you will consider the question of damages which the evidence shows the plaintiff has sustained as the direct and proximate result thereof.”

It also appears that before argument counsel for the traction company made the following re*268quests for instructions to the jury, all of which the court refused:

“5. If you find that the injuries of the plaintiff were caused directly and solely by a defect in the clevis of the elevator upon which the plaintiff was riding at the time he was injured, and that said defect could not have been discovered by frequent examinations, then I charge you that it is your duty to return a verdict for the defendant. ** * •**

“7. Unless you find by the greater weight of evidence that there was an unsound condition of some part of the elevator which could have been discovered by frequent examinations, then I charge you that it is your duty to return a verdict for the defendant.

“8. Unless you find by the greater weight of evidence that there was an unsound condition in the clevis of the elevator which could have been discovered by frequent examinations, then I charge you that it is your duty to return a verdict for the defendant.” ' •

An examination of the general charge discloses no instruction upon the question of inspection by the traction company, nor any instruction as to the duty of the employer to make suitable provisions to prevent injury to persons who used such elevator, nor any instruction concerning the statutory duty of the traction company, as set forth in Sections 1027, 871-13, 871-15, and 871-16, General Code.

The trial court also refused to admit testimony offered by the traction company as to repairs made in different parts of the elevator from time to time, of frequent examinations and inspections, *269some of these being made three or four times a' week, and as recently as the Friday preceding the accident, which took place on Saturday:

“Q. State what, if any, inspections were made of the elevator by the defendant before this accident in which Kuhn was hurt. ...

“Mr. Street: We object.

“The Court: Objection sustained.

“Mr. Rogers: If allowed to answer, the witness would say on May 7, 1919, the elevator was examined by the elevator inspector of the city of Cincinnati, and that at all times up to the time of the injury to Kuhn the witness, two or three or more times a week, made a careful inspection of all parts of the elevator. * * *

“Q. * * * State what, if any, repairs or replacements had been made upon the elevator before the time at which Kuhn was injured.

“Mr. Roettinger: We object to the question as not being material to the case.

“The Court: The objection is sustained.

“Mr. Rogers: The defendant offers to show, if the witness were allowed to answer, that prior to the accident to Kuhn repairs and replacements were made to parts of the elevator whenever' it was found that any parts were weak or worn.” The view of the trial court is further shown at the time of the overruling of the motion for a directed verdict at the close of plaintiff’s case: “The Court: The court holds that a violation of Section 1027 of the General Code constitutes negligence *per se,*that is, negligence as a matter of law rather; that that section 1027 is a lawful requirement within the meaning of those terms as *270used in the Ohio Constitution and in the Workmen’s Compensation Act; and that a cause of action for damages resulting proximately from a violation of Section 1027 may be instituted and maintained against the employer notwithstanding the Workmen’s Compensation Act.

“Mr, Rogers: Does your honor so construe that section and rule that where it appears that the plaintiff has been injured by reason of a defect or unsoundness in any part of the elevator, and that as a direct result the plaintiff has been injured, the defendant is liable in damages *without regard to the question of the care which the defendant may have exercised in inspecting or maintaining the elevatorf*“The Court: Yes.

“Mr. Rogers: Then I except to your honor’s interpretation or construction of that statute. * * *” Upon the overruling of the motion for a new trial, the trial court expressed himself, we are advised by the brief of counsel, as follows:

“It was the opinion of the court at the trial of this case that by the terms of Section 1027, General Code, an absolute duty was imposed upon the defendant to ‘keep in sound condition the ropes, gearing and other parts of elevators,’ and that the defendant could not by proof of the exercise of reasonable or *even extraordinary care*in making inspections relieve itself from the criminal liability following the failure to ‘keep in sound condition the ropes, gearing and other parts of elevators’; and by parity of reasoning could not escape the civil liability resulting therefrom in the event .of an injury to an employee proximately resulting *271from such violation. Accordingly the court charged the jury 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, and if the elevator was thus sufficient and the plaintiff was injured while operating it through' some happening not attributable to any such insufficiency in any part of the elevator, then the defendant would not be liable.’ ”

Upon the issues tendered, the parties went to trial, resulting in a verdict for plaintiff for $15,-000. Error was prosecuted to the Court of Appeals, and that court held that there was error upon the record in the proceedings of the court of common pleas to the prejudice of the traction company; that substantial justice had not been done; and that the court of common pleas erred in overruling the motion of the traction company to direct the jury to return a verdict in its favor, for the reason that the record failed to show that the traction company had failed to comply with a “lawful requirement,” within the meaning of that term as used in Section 1465-76, General .Code, and in Article II, Section 35, of the Constitution of the state of Ohio. The judgment rendered by the common pleas court was set aside, and the Court of Appeals proceeded to render final judgment in favor of the traction company. To reverse this judgment of the Court of Appeals error is now prosecuted to this court.

*Messrs. Roettinger & Street,*for plaintiff in error.

*272*Mr. H. Kenneth Rogers,*for defendant in error.

Day, J.

In the brief for plaintiff in error we are advised there is “but one issue, and this issue is not complicated either by an election of any kind on the part of Kuhn to submit to the Workmen’s Compensation Board or by contributory negligence or assumed risk”; that plaintiff in error “stands clearly upon Sections 871-15 and 871-16, Supplement of the Code, and Section 1027, paragraph 4, of the General Code.”

It is the claim of defendant in error that—

> “The trial court held that this case was governed by the provision of subdivision 4, Section 1027 * * * and not only that that provision was a ‘lawful requirement’ within the meaning of that term as used in Section 1465-76, but that it made the traction company an insurer against any injury to Kuhn directly resulting from any unsound condition of any part of the elevator; that no matter how carefully or frequently the elevator had been inspected or repaired or what measures had been taken to maintain it in a safe and sound condition, the company was liable to Kuhn for any injury directly resulting to him from any unsoundness in any part of the elevator, even though the unsoundness were latent and not discoverable by the exercise of the greatest care.”

' It is therefore apparent that the paramount question in this case is: Does subsection 4 of Section 1027, General Code, create an absolute liability on the part of an employer for an injury to an employee due to the fall of an elevator, regardless of whether the employer has made “suitable provisions to prevent injuries to persons who use” *273such elevator, regardless of whether such employer has had said elevator “examined frequently” in order to keep “in sound condition the ropes, gearing and other parts of said elevator,” regardless of what steps the employer may have taken to make the employment and place of employment as free from danger to the life, health, safety, or welfare of employees as the nature of the employment would reasonably permit, and regardless of whether the employer has furnished safety devices and safeguards and adopted and used methods reasonably adequate to render such employment and place of employment safe, under the meaning of the statute?

The sections of the General Code relied upon are in substance as follows:

> “Sec. 1027. The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein or any part thereof as follows: * * *

> “4. They shall case in a.11 unused openings of elevators and elevator shafts and place automatic gates or floor doors on each floor where entrance to the elevator carriage is obtained. They shall keep such gates or doors in good repair and examine frequently and keep in sound condition the ropes, gearing and other parts of elevators.”

> “See. 871-13. The terms ‘safe,’ and ‘safety,’ as applied to any employment or a place of employment, shall mean such freedom from danger to the life, health, safety or welfare of employes * * * as the nature of the employment will reasonably permit.”

> “Sec. 871-15. And shall furnish and use safety *274devices and safeguards, * * * and shall do every other thing *reasonably necessary*to protect the life, health, safety and welfare of such employes. * * *”

> “Sec. 871-16. No such employer shall fail to furnish, provide and use safety devices and safeguards, ** * **and no employer shall fail or neglect to do every other thing *reasonably necessary*to protect the life, health, safety and welfare of such employes. * * *”

To state the contention of the plaintiff in error in another form, it may be said that it is claimed that when an elevator falls with the operator, and he is injured as a proximate result of such fall, there is a liability, because it was the duty of the employer, as charged by the trial court, “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,” from which it is to be inferred that if it broke there was a violation of the expressions “safe,” “safety devices,” “safeguards,” and “in sound condition,” as used in Sections 871-13, 871-15, 871-16 and Section 1027, subsection 4, General Code. The effect of such a contention is to constitute the employer an absolute insurer of the safety of such employee, unless the employer is given an opportunity to show that he has met the statutory requirements.

Our attention is called by counsel upon both sides to the case of *Ohio Automatic Sprinkler Co.*v. *Fender,*108 Ohio St., 149, 141 N. E., 269. Inasmuch as counsel upon both sides rely upon that case, it is well to understand what that case holds touching a “lawful requirement,” and the follow*275ing excerpt from the opinion, at page 170 of 108 Ohio St., 141 N. E., 276, makes that point olear: “These provisions do not constitute an absolute liability nor make the employer an insurer against injuries to employees. The general requirement of ‘suitable provisions to prevent injury’ and the specific requirement that ‘they shall guard” must be construed in the light of the definitions of ‘safe’ and ‘safety’ in Section 871-13, G-eneral Code, and should be so administered as only to require ‘such freedom from danger to the life, health, safety or welfare of employees or frequenters as the nature of the employment will reasonably permit.’ ”

While it was the duty of the employer “to examine frequently and keep in sound condition the .ropes, gearing and other parts of elevators,” that 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 employee 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 said elevator safe, within the meaning of the statute. The word *“sound,”*as used in Section 1027, subsection 4, has the same significance as the word *“safe,”*as defined in Section 871-13, to-wit, as free from “danger to the life, health, safety or welfare of employees * * * as the nature of the employment will reasonably permit.” By recognized lexicographers the word “safe” is given the meaning of Sound, and the word “sound” the meaning of safe.

*276It is claimed that this is simply a statement of the common-law rule of ordinary care. Much discussion has already taken place in this court on this subject, and, without adding thereto, it is sufficient to say that the rule of statutory care above stated is what the Legislature has seen fit to embody in the law.

If the statute is to be changed, the place to change it is in the Legislature. As indicating that the Legislature intendéd something different from ordinary care, reference may be made to Section 6243, General Code, commonly called the Norris Act, wherein it is. affirmatively provided that—

> “The employer may show by way of defense that such defect was not discoverable in the exercise of ordinary care.”

It is, of course, difficult to say as a matter of law when the physical conditions and acts requisite' to satisfy the statute appear conclusively by the evidence; the question of the employer’s compliance with the statutory duty must usually, but not always, be left to a jury. If there is no evidence tending to show a violation of a statutory duty, when that is relied upon as a basis of recovery, then of course it is the duty of the court to take the case from the jury. On the other hand, if there is evidence tending to show violation of duty prescribed by statute, the question should be submitted to a jury under proper instructions.

It was this denial upon the part of the trial court to permit the defendant traction company to show, or to attempt to show, that it had complied with this statutory duty, that amounted to prejudicial error against the traction company.

*277This court in *Variety Iron & Steel Works Co.*v. *Poak,*89 Ohio St., 297, 106 N. E., 24, held that a violation of Section 1027 was negligence *per se,*and the trial court in the present instance correctly so interpreted the law. This doctrine of a violation of a statute constituting negligence *per se*has been heretofore recognized by this court. *Schell*v. *Du Bois, Admr.,*94 Ohio St., 93, 113 N. E., 664, L. R. A., 1917A, 710; *Neave Bldg. Co.*v. *Roudebush, Admr.,*96 Ohio St., 40, 117 N. E., 22; *Krause*v. *Morgan,*53 Ohio St., 26, 43, 40 N. E., 886. But whether or not a violation of subdivision 4 of Section 1027 was negligence *per se*was not the true question in this case. The paramount question may be stated thus: Was there a violation by the traction company of a *statutory duty,*which was the proximate cause of plaintiff’s injury? The plaintiff claimed there was, and the defendant claimed there was not, and this record shows that the traction company was denied the right of showing its compliance with the: lawful requirement.

Section 1027, subsection 4, General Code, enjoined a duty, but not an absolute liability, and a failure to observe the duty would be a violation of a “lawful requirement.”

This statute was enacted for the purpose of forestalling injuries and accidents, and not for the purpose of creating absolute liabilities. It was intended to be complied with by the employer for the manifest purpose of prevention of industrial casualties. If an employer is not permitted to show that he has complied with the provisions of the statute, it would seem that the purpose of its enactment had not been met, but that a plan of *278absolute liability had been created. This we do not think was the legislative intent.

This court has heretofore construed safety statutes of like character and reached the conclusion that the same do not create absolute liability.

In *Krause*v. *Morgan,*53 Ohio St., 26, 43, 40 N. E., 886, 890, construing the statute passed to prevent explosions due to gas in coal mines, Judge Spear spoke as follows:

> “While the statute, as we construe it, does not make the operator of the mine *absolutely*liable to a party injured by an explosion of gas where the operator has not complied with the statute, such conduct is negligence *per se,*and the employer cannot escape liability by showing that he took other means to protect the workmen equally efficacious. Proof of failure to obey the statute is all that is necessary to establish negligence on the part of the operator, but the statute does not change the well-established rule that where one has been guilty of negligence which may result in injury to others, still the others are bound to exercise ordinary care to avoid injury.”

Now, the defendant, the traction company, had a right to show, if it could, that it had met its statutory duty — by proving that it had performed the duties required by statute.

The charge of the court, in substance, made the defendant liable if the elevator, or any part thereof, was unsound and the plaintiff’s injury proximately resulted from such unsoundness when the elevator was being used in the manner and for the purpose intended. This view ignored the provisions of Section 1027, which required the defendant to *“examiine frequently*and keep in sound *279condition the ropes, gearing and other parts of elevators,” and to “make suitable provisions to prevent injuries”; and further ignored the traction company’s right to show its compliance with the statutory duty required by Sections 871-13, 871-15, and 871-16, General Code, with which Section 1027 is *in pari materia.*The mere fact that an accident happens does not, in and of itself alone, constitute a cause of action entitling a plaintiff to recover for violation of a lawful requirement. It must also appear that some of these provisions of statute, looking toward the prevention of injury, have not been complied with by the employer, and this constitutes a failure to comply with a “lawful requirement.” It would be a denial of justice not to permit an employer to show, if he can, that he has complied with the provisions of the statute constituting “lawful requirement.”

We think the traction company, as shown by this record, was denied this privilege, and' that therefore the reversal of the judgment of the court of common pleas was right.

We are not, however, in accord with the view of the Court of Appeals that there was no evidence tending to show violation of a “lawful requirement,” and that final judgment should be rendered for the traction company, although by the decisions of this court, as then existing, such conclusion was correct. We hold that if the company violated subsection *4*of 'Section 1027, General Code, it did violate a lawful requirement, and that if there was evidence tending to show that fact the question was one for the jury. • Therefore, to that extent, the judgment of the Court of Appeals cannot be affirmed.

*280With the modification that the action of the Court of Appeals in rendering final judgment be reversed, and the cause remanded *to the*court of common pleas for a new trial, the judgment of the Court of Appeals is in all other respects affirmed.

*Judgment modified, and affirmed as modified.*

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

Robinson, Jones and Matthias, JJ.

(dissenting).

We concur in this judgment in so far as it affirms the judgment of the Court of Appeals, but dissent from the order remanding the cause to the court of common pleas, holding that this action cannot be maintained for the reasons set forth in the opinion in *Patten*v. *Aluminum Castings*Co., 105 Ohio St., 1, 136 N. E., 426. The defendant in error had fully complied with the requirements of the Workmen’s Compensation Act, and plaintiff’s only remedy was to seek compensation as therein provided. If the action were one based upon the violation of a lawful requirement, we agree that the rule stated in the syllabus would govern. However, it is disclosed that what was claimed to be the violation of a lawful requirement has developed into a case of negligence, wherein the degrees of care required are applied. Under the provisions of the Workmen’s Compensation Act, the defendant in error is exempt from such action.