#### McGill *v.*The Cleveland & South-Western Traction Company.

*Rule that where master directs servant*— To *continue use of defective tool*— Relieves *servant of risk*— Does *not apply to tool of simple construction, when*— Law. *of respondeat*superior— *Servant injured by defective step-ladder.*

1. The rule that a direction by the master to continue the use of a defective instrument or tool, coupled with a promise to replace it with one not defective, relieves the servant from the doctrine of assumed risk if injured during such continued use and because of the defect, does not apply to cases of ordinary labor with a tool of simple construction with which the servant is entirely familiar, and which he understands and comprehends as fully as the master.

2. Where an employe whose duties require him to use an ordinary step-ladder, discovers and appreciates that the step-ladder has become and is defective, dangerous and “unfit for him to use in connection with his said work,” and he notifies the master, who promises to furnish another, but before doing so the employe in using such defective step-ladder is injured, the master under such circumstances is not liable

(No. 11088

Decided December 22, 1908.)

Error to the Circuit Court of Lorain county.

On January 31, 1907, the plaintiff in error, David B. McGill, commenced an action in the Court of Common Pleas of Lorain county, Ohio, against the defendant in error, The Cleveland & South-Western Traction Company, to recover damages for personal injuries received by him on October 23, 1906, while in the employ of said defendant company. The petition filed by him, omitting caption and verification, was in the words and figures following:

“Now comes the plaintiff, David B. McGill, and *204says that the defendant, The Cleveland & SouthWestern Traction Company, is now and was on the 23d day of October, 1906, a corporation duly organized under the laws of the State of Ohio, and as such corporation owned, operated and controlled a line of electric railway extending from the City of Cleveland, in the County of Cuyahoga, to the Village of Wellington, County of Lorain, and elsewhere.

“That in said Village of Wellington at said time, near the Public Square, defendant maintained a certain side-track and other equipment used by the defendant in the operation and maintenance of its said line of railway.

“Avers that on and prior to the 23d day of October, 1906, plaintiff was in the employ of the defendant company in the capacity of helper to one Mike Gibbons, who was then in the employ of the defendant company in Wellington, Ohio, as car inspector.

“Plaintiff avers that he controlled no person and was subject to the orders, direction and control of his said foreman or boss, Mike Gibbons.

“Avers that at said time, defendant maintained as aforesaid, a certain side-track along the main street in said Village of Wellington, where the defendant placed certain of its cars from time to time to be inspected, repaired and cleaned. Avers that it was plaintiffs duty among other things, at said time, to assist, under the direction of said boss, or foreman, in cleaning, washing and repairing the cars of defendant company. That it became and was necessary in cleaning and washing said cars of defendant company, and particularly *205the windows and window-frames on the outside of said cars, for this plaintiff to use a certain stepladder about seven feet high, said ladder being furnished by defendant company for that purpose in the performance of his work.

“Avers that some days prior to the 23d day of October, 1906, plaintiff discovered that said ladder which defendant had furnished him to be used while performing his duties, as aforesaid, had become old, worn and defective to such an extent that the same was unfit for plaintiff to use in connection with his said work, in that the steps, of said ladder were loose and worn and the iron braces holding said steps to the side pieces of said ladder were loose, broken and defective. .

“Avers that a few days prior to the 23d day of October, 1906, this plaintiff complained to his said foreman, Mike Gibbons, of the defective and dangerous condition of said ladder, and plaintiff avers that said defendant through its foreman assured and promised plaintiff that he would have said ladder repaired with a new, proper and sufficient ■one, so that plaintiff could safely perform his work.

“Plaintiff avers that about a week or ten days prior to the 23d day of October, 1906, he further complained to the master mechanic of defendant company, Fred Strail, of the defective and dangerous condition of said ladder, and that said master mechanic then and there promised and assured plaintiff that he would be furnished with a new, sufficient and proper ladder with which to perform his work as soon as the same could be made, and that he should u«e said ladder until a new ladder was furnished. • That plaintiff relied upon defend*206ant’s fulfilling its said promises and assurance, and he continued to perform his labor as directed by said foreman, Mike Gibbons, until the 23d day of October, 1906, when plaintiff was injured in the direct line of his duty and without fault or negligence upon his part, as hereinafter set forth.

“Plaintiff avers that on said 23d day of October; 1906, he was ordered by defendant’s foreman, Mike Gibbons, to clean the windows on the outside of the vestibule on the west end of one of defendant’s cars placed on said side-track in said village, and in order to properly perform his work it became and was necessary for plaintiff to use said ladder furnished by the defendant company, and that while attempting so to do, the steps of said ladder and braces thereof gave way, by reason of its old, defective and dangerous condition, and plaintiff was thrown upon and across the bumper on the west end of said car, and was precipitated to the fender of said car, bruising plaintiff and inflicting serious and permanent injuries as hereinafter set forth.

“Plaintiff avers that the defendant was guilty of negligence and carelessness in permitting and allowing said ladder to be and remain in said defective, worn out and dangerous condition, and in ordering said plaintiff to work with the same at said time. That the defendant was guilty of carelessness and negligence in not furnishing plaintiff with a new, proper and sufficient ladder, in accordance with the promises and assurance of defendant.

“Plaintiff avers that his injuries were caused solely by reason of the fault and negligence of the defendant, as aforesaid, and without any fault *207or negligence upon his part. That by reason of the negligence of the defendant aforesaid, plaintiff was thrown upon the iron bumper of said car, thereby suffering a fracture of two ribs on his right side; that his right arm and shoulder were severely sprained and bruised; that he is unable to use said right arm and shoulder as he formerly did and he believes he never will have the proper use of said arm and shoulder. Avers that the same gives him constant pain; that he sustained a severe injury to his head and neck; that his head causes him constant pain and that he suffers from dizziness; that he received a >severe bruise to his right hip; that he further received a severe injury and shock to his entire nervous system; that he suffers from sleeplessness as a result of the injurv to his head. Avers that by reason of the fracture of the ribs on his right side his right lung has become affected, the exact nature and extent of which plaintiff is unable at this time to determine. That he was confined to his bed for a period of about two weeks; that prior to said injury he was able to perform and did perform manual labor; that since said'injury, he has not been able to perform any manual labor and believes he will be incapacitated from performing the same as he formerly did. Avers tljat his injuries are permanent, all of his damage in the sum of ten thousand dollars.

“Wherefore plaintiff prays judgment against said defendant for his damages so sustained, as aforesaid, in the sum of $10,000.00.”

A general demurrer to this petition was sustained by the court of common pleas, and the *208plaintiff not desiring to amend or to further plead, his petition was dismissed and judgment rendered against him for costs. On error this judgment was affirmed by the circuit court. A reversal of both of said judgments is here asked by the plaintiff in error.

*Messrs. Skiles, Green & Skiles*and *Messrs. Stroup & Fauver,*for plaintiff in error.

There certainly can be no contention but that the rule laid' down in the case of *Manufacturing Co.*v. *Morrissey,*40 Ohio St., 148, is the law of Ohio.

In the opinion of the court in the above case, the court refers to the rule recognized in the English courts and the rule as laid down by the Supreme Court of the United States in the case of *Hough*v. *Railway Co.,*100 U. S., 213.

The general rule as laid down by Cooley on Torts is quoted both in the Ohio case and in the United States Supreme Court case.

The question raised by the defendant company-in the case at bar is that this is one of the cases wherein this rule does not apply, and the defendant .bases its argument upon the ground that the servant was as familiar with the defective and dangerous condition of the ladder as was the master, and that in the case of a defect of ladder or some other simple instrumentality, the servant assumes all the risks 'incident thereto if he uses the same. That notwithstanding the master may assure the servant, as the petition alleges in this case, and may promise the servant that a new ladder will be given him, and agreeing to and *209ordering that he use this ladder until such time, yet in this case the general doctrine does not apply.

So far as we can ascertain this court has not passed upon that question. Some states hold that where the instrument is a simple one and where the servant appreciates the danger and it is obvious, and the servant has as much knowledge as the master has, that the promise amounts to nothing and that it should be abrogated. Other states hold the contrary doctrine. So that a discussion among the different courts on this question has been carried on, one holding one way and one court another. To cite the different courts and their holdings and to ascertain where the greater weight of authority rests would, in our opinion, be unnecessary. We desire, however, to cite some of. the opinions of the leading judges, and call the court’s attention to the case of *Narramore*v. *Railway Co.,*96 Fed. Rep., 298.

Upon what theory or upon what principle. can it be said that the piaster can be relieved from his liability to the servant under these conditions? The only theory that can be urged is that the servant appreciated the danger the same as the master appreciated it and that he had knowledge of it because he called his master’s attention to it. The very fact that he called the master’s attention to it was for the purpose of obtaining a new ladder, and if a promise to furnish him a new ladder amounts to anything, it certainly ámounts to a great deal in this case. *Williams*v. *Kimberly & Clark Co.,*131 Wis., 303.

We have examined the cases which hold that the principle laid down in the case of *Yerkes*v. *210*Railway Co.,*112 Wis., 183, does not apply where the instrument or tool is a simple one, and we confess that we are unable to follow the logic of these opinions. The reason seems to be that arbitrarily, or possibly for expediency, this rule and principle should apply only where the instrumentality is a machine or device more or less intricate and based upon the assumption that the master has a better knowledge of its intricacy than the servant. Let us, for example, imagine a mechanic working on an intricate machine in a factory where the master maintains a repair man or men to keep the machine in shape. Let us further assume that the servant is a skillful operator of this particular machine, and knows more about it than the master. A defect in some part of the mechanism appears to the operator and he informs the master of the condition of the machine, receives a promise to have it repaired, and at the same time is ordered by the master to continue its use pending the repairs. The servant, believing that the machine will be repaired within a reasonable time, and relying upon the promise of the master to take care of and remedy the defects pointed out to him (the master), continues to use the machine, knowing meanwhile that by reason of its defective condition he might receive an injurv. The master delays somewhat the repairing of the machine but the servant continues in his regular employment, believing that the same will be remedied, and while so employed and before the defect is repaired, receives his injurv. We do not think there is any question that if this assumed case had been presented to these different courts who have held *211peculiarly upon the extent and force of the principle under discussion, the master would have been held liable.

*Messrs. E. G., H. C. & T. C. Johnson,*for defendant in error.

Plaintiff says that it was necessary to use stepladder. He was not told to do so and there is nothing shown in the petition whereby it can be even inferred that it was necessary to use a stepladder.

Plaintiff’s petition describes a simple instrument whose defects were so open, obvious and apparent that it would not stand the strain of the weight of an object “the size of the millionth part of a gnat’s eye-winker,” referred to in plaintiff’s brief, and yet notwithstanding this, and plaintiff’s full knowledge thereof, he placed himself in the position to be injured and relies upon a mere promise to “have a new, proper and sufficient step-ladder, when it could be made” when he knew that if he used the ladder it would break.

There is nothing complicated about a stepladder. Its manner of construction and use was as well known and understood to McGill as to the company.

It was no more complicated than a hoe — a hand spike — or a mop. It does not come within the rule that a servant may complain of a defect therein and upon promise of master to repair, may remain in the service without accepting the risk. *Marsh*v. *Checkering,*101 N. Y., 400, 5 N. E. Rep., 56; *Cahill*v. *Hilton,*106 N. Y., 512; *Corcoran*v. *Light Co.,*81 Wis., 193; *Gowen*v. *Harley, 6 C. C. A.,**212190, 56 Fed. Rep., 974; *State*v. *Adams,*18 S. W. Rep., 393; *Meador*v. *Railway Co.,*138 Ind., 290, 37 N. E. Rep., 721; *Conley*v. *Express Co.,*32 Atl. Rep., 965; *Machine Co.*v. *Wojciechowski,*111 Ill. App., 641; *Bowen*v. *Railroad Co.,*117 Ill. App., 9; *Packing Co.*v. *Kretowicz,*119 Ill. App., 448; *Gunning System*v. *Lapointe,*72 N. E. Rep., 393; *Manufacturing Co.*v. *Nisbett,*68 N. E. Rep., 936; *Light & Power Co.*v. *Murphy,*115 Ind., 566; *Railway Co.*v. *Watson,*114 Ind., 20; Bailey on Master & Servant, 209; *Erdman*v. *Steel Co.,*95 Wis., 5, 60 Am. St. Rep., 66; *Vanderpool*v. *Partridge, 1*3 L. R. A., N. S., 668.

The promise, if made, did not absolve McGill from the use of ordinary care. *Corcoran*v. *Light Co.,*81 Wis., 193.

In the case cited servant was ordered to use defective ladder in doing the work in which he was injured. In the case at bar there was no such order. In the case cited the defect alleged was that there was no spike in the bottom of the ladder. *Meador*v. *Railway Co.,*46 Am. St. Rep., 384.

There was no order to plaintiff that he should use the ladder in washing windows. The order alleged was to wash the windows and plaintiff says it was necessary to use defective ladder. There are many ways to wash windows. We see in use a sponge or a cloth upon the end of a long stick. Windows could be washed from inside by opening window and putting out arm. ITe was not ordered to use any particular method — -the plaintiff could determine for himself.

Nothing in the petition shows that there were no other appliances obtainable or at hand to be *213used in washing windows. He was ordered to clean the windows and it was left to his judgment how and with what he would do it.

The defects in ladder as disclosed in the petition were so patent and of such a character that plaintiff was guilty of negligence contributing to his injury. even though promise to repair is shown. *Railway Co.*v. *Watson,*5 Am. St. Rep., 578; *Erdman*v. *Steel Co.,*60 Am. St. Rep., 71; *Anderson*v. *Fielding,*99 N. W. Rep., 357; *Crum*v. *Pump & Lumber Co.,*72 N. E. Rep., 193; *Hotel Co.*v. *Kaltenbrun,*80 S. W. Rep., 1163, 82 S. W. Rep., 378; *Baumwald*v. *Trenkman,*88 N. Y, Supp., 182.

It is not in all cases that the servant may relieve himself from the assumption of the risk incident to defects and dangers of which he has full knowledge by exacting from the master a promise to repair. The cases where the ride of assumed risk is suspended and the servant exempted from its application under a promise from the master to repair or cure the defect complained of are those in which particular skill and'experience are necessary to know and appreciate the defect and the danger incident thereto, or where machinery and materials are used of which the servant can have little knowledge, and not those cases where the servant is engaged in ordinary labor, or the tools used are only those of simple construction, with which the servant is as familiar and as fully understands as the master. *Manufacturing Co.*v. *Nisbett,*205 Ill., 273, 68 N. E. Rep., 936; *Steel Co.*v. *Mann,*170 Ill., 200, 48 N. E. Rep., 417, 62 Am. St. Rep., 370, 40 L. R. A., 781: *Meador*v. *214*Railway Co.,*138 Ind., 290, 37 N. E. Rep., 721, 46 Am. St. Rep., 384; *Marsh*v. *Chickering,*101 N. Y., 396, 5 N. E. Rep., 56; *Light & Power Co.*v. *Murphy,*115 Ind., 570, 18 N. E. Rep., 30; *Railway Co.*v. *Kelton,*18 S. W. Rep., 933; Bailey on Master & Servant, Section 3103; Burrows on Negligence, 121, 122; *Gunning System*v. *Lapointe,*212 Ill., 274, 72 N. E. Rep., 393.

Crew, J.

In support of the claim that the averments of the petition in this case sufficiently allege and show a liability on the part of the traction company to plaintiff for the injuries alleged to have been sustained by him through the negligence of said traction company, reliance is had upon the general rule that where the servant notifies the master of a defect in machinery or in his place of work, and the master promises to repair the same or to obviate and remove the danger, and the servant reasonably relying upon such promise remains in the service, that the master thereby assumes the risk of injury to the servant, and is liable to him in damages for an injury resulting to him from such defect pending the making of the repair promised. While such doubtless is the general rule applied in cases where the servant is engaged in working with machinery or appliances of which he has but a limited and imperfect knowledge, and in cases where some measure of skill and experience is necessary to enable the servant to know and appreciate the particular defect and the danger incident thereto, yet, that this rule was never designed or intended to apply to cases of common and ordinary labor, such as requires in its *215performance the use only of some simple implement, instrumentality or tool .with which the employe is himself entirely familiar, is, we think, clearly and abundantly established by the overwhelming weight of authorities.

Judge Bailey in his work on Personal Injuries, Volume 2 at Section 3103, in speaking of this rule and its limitations, says: *“A*master is not liable to a servant of mature years and ordinary mental capacity who is injured in his employ by reason of a defect in a ladder of which he was aware, though the servant had notified the master of such defect, and was told to use the ladder until another was furnished. The rule exempting an employe from an assumption of the risk in case of a promise to remedy the defect is designed for the benefit of employes engaged in work where machinery and materials are used of which they - can have little knowledge, and not for those engaged in ordinary labor which only requires the use of implements with which they are entirely familiar.” In the case of *Meador*v. *The Lake Shore & Michigan Southern Railway Co.,*138 Ind., 290, which was an action to recover for a personal injury occasioned by a defective ladder used by a watchman in lighting and extinguishing lamps at street crossings, the court in discussing this rule said: “In cases, however, where persons are employed in the performance of ordinary labor, in which no machinery, is used, and no materials are furnished, the use of which requires the éxercise of great care and skill, it can be scarcely claimed that a defective instrument or tool furnished by the master, of which the employe has full knowledge and *216comprehension, can be regarded as making out a case of liability within the rule laid down. A common laborer who uses agricultural implements while at work upon a farm or in a garden, or one who is employed in any service not requiring great skill and judgment, and who uses the ordinary tools employed in such work, to which he is accustomed, and in regard to which he has complete knowledge, cannot be said to have a claim against his employer for negligence, if, in using an utensil which he knows to be defective, he is accidentally injured. * * * The fact that he notified the master of the defect, and asked for' another implement, and the master promised to furnish it, in such a case, does not render the master responsible if an accident occurs. A rule imposing a liability under such circumstances would be far reaching in its consequences, and would extend the rule of *respondeat superior*to many of the vocations in life for which it was never intended. It is a just and salutary rule, designed for the benefit of employes engaged in work where machinery and materials are used of which they can have little knowledge, and not for those engaged in ordinary labor, which only requires the use of implements with which they are entirely familiar. The plaintiff, in the case at bar, was of the latter class of laborers, and the work in which he was engaged was not of a character which would entitle him to the protection of the principle referred to, as applied to the use of complicated machinery.” In *Marsh*v. *Chickering et*al., 101 N. Y., 396, in the opinion of the court by Miller, J., it is said: “As a general rule it is to *217be supposed that the master who employs a servant has a better and more comprehensive knowledge as to the machinery and materials to be used than the employe who has claims upon his protection against the use of defective or improper materials or appliances wblile engaged’in the performance of the service required of him.

“The rule stated, however, is not applicable in all cases, and where the servant has equal knowledge with the master as to the machinery used or the means employed in the performance of the work devolving upon him, and a full knowledge of existing defects, it does not necessarily follow that the master is liable for injuries sustained by reason of the use thereof.

“In considering the application of the rule just stated due regard must be had to the limited knowledge of the emplojre as to the machinery and structure on which he is employed and to his capacity and intelligence, and to the fact that the servant has a right to rely upon the master to protect him from danger and injury, and in selecting the agent from which it may arise. *Powers*v. *N. Y., L. E. & W. R. R.*Co., 98 N. Y., 274, 280.

“In cases, however, where persons are employed in the performance of ordinary labor, in which no machinery is used, and no materials furnished, the use of which requires the exercise of great skill and care, it can scarcely be claimed that a defective instrument or tool furnished by the master, of which the employe has full knowledge and comprehension, can be regarded as making out a case of liability within the rule laid down. * * * It does not rest with the servant to say that the *218master has superior knowledge and has thereby imposed upon him. He fully comprehends that the instrument which he employs is not perfect, and if he is thereby injured it is by reason of his own fault and negligence. The fact that he notified the master of the defect and asked for another instrument, and the master promised to furnish the same, in such a case, does not render the master responsible if an accident occurs.” In *Gunning System*v. *Lapointe,*212 Ill., 274, a comparatively recent case, it is said: “It is not in all cases that the servant may relieve himself from the assumption of the risk incident to defects and dangers of which he has full knowledge by exacting from the master a promise to repair. The cases where the rule of assumed risk is suspended and the servant exempted from its application under a promise-from the master-to repair or cure the defect complained of, are those in which particular skill and experience are necessary to know and appreciate the defect and the danger incident thereto, or where machinery and materials are used of which the servant can have little knowledge, and not those cases where the servant is engaged in ordinary labor, or the tools used are only those of simple construction, with which the servant is as familiar and as fully understands as the master.” In *Vanderpool*v. *Partridge,*decided by the Supreme Court of Nebraska, May 24, 1907, and reported in 13 L. R. A. (new series), 668, the first two paragraphs of the syllabus are as follows: “(1) The law requires masters to exercise ordinary care to provide reasonablv safe tools and appliances for their servants. (2) But the *219foregoing rule has no application where the servant possesses ordinary intelligence and knowledge, and the tools and appliances furnished are of a simple nature, easily understood, and in which defects can be readily observed by such servant.” The rule as announced by the foregoing authorities has found recognition, and has been declared, in many other cases, among which are *Bowen*v. *Chicago & North-Western Railroad Co., 117*Ill. App., 9; *Corcoran*v. *Milwaukee Gas Light Co.,*81 Wis., 191; *Jenney Electric Light & Power Co.*v. *Murphy,*115 Ind., 566; *Webster Manufacturing Co.*v. *Nisbett,*205 Ill., 273; *Conley*v. *American Express Co.,*87 Me., 352; *Railway Co.*v. *Kelton,*55 Ark., 483; *Gowen*v. *Harley,*56 Fed. Rep., 973: *International Packing Co.*v. *Kretowicz,*119 Ill. App., 488; *Erdman*v. *Illinois Steel Co.,*95 Wis., 6; *Railway Co.*v. *Brentford,*79 Tex., 619.

Tested then by this apparently now well settled rule, we are of opinion that the allegations of plaintiff’s petition in the present case do not state a cause of action. In his petition plaintiff avers, “that some days prior to the 23d day of October, 1906, plaintiff discovered that said ladder which defendant had furnished him to be used while performing his duties, as aforesaid, had become old, worn and defective to such an extent that the same was unfit for plaintiff to use in connection with his said work, in that the steps of said ladder were loose and worn and the iron braces holding said steps to the side pieces of said ladder were loose, broken and defective.

“Avers that a few days prior to the 23d day of October, 1906, this plaintiff complained to his said *220foreman, Mike Gibbons, of the defective and dangerous condition of said ladder, and plaintiff avers that said defendant through its foreman assured and promised plaintiff that he would have said ladder repaired with a new, proper and sufficient one, so that plaintiff could safety perform his work.

“Plaintiff avers that about a week or ten days prior to the 23d day of October, 1906, he further complained to the master mechanic of defendant company, Fred Strail, of the defective and dangerous condition of said ladder, and that said master mechanic then and- there promised and assured plaintiff that he would be furnished with a new, sufficient and proper ladder with which to perform his work as soon as the same could be made, and that he should use said ladder until a new ladder was furnished.” It sufficiently and affirmatively appears from the foregoing allegations, that the unfit and unsafe condition of this step-ladder, on and prior to October 23, 1906, was fully known to and understood by the plaintiff. He knew as he alleges, “that the same ■ was unfit for plaintiff to use in connection with his said work.” He was familiar with and appreciated its condition and defects, all of which were alike open to his observation and within his comprehension, and it would seem from the averments of his petition that he was so. impressed by this defective and unsafe condition that he not only complained of the same to his foreman but to the master mechanic as well. Plaintiff knew as well as the foreman, master mechanic or master, that said step-ladder in its then condition could not be used with any assurance of safety, and having such knowledge *221he must be held to have assumed the risk of its use. To hold the master liable to an employe, under such circumstances, for injuries resulting to the latter from the use of so simple an implement or tool as an ordinary step-ladder, would be to extend the rule of *respondeat superior,*beyond its reasonable limit and to apply it as never intended. The case of *Manufacturing Co.*v. *Morrissey,*40 Ohio St., 148, cited by counsel for plaintiff in error as supporting their contention in the present case is not in point, that being a case where the injury to the employe was caused by a complicated machine, and not by a simple instrumentality or appliance such as the step-ladder in the case at bar.

*Judgment affirmed.*

Price, C. J., Shauck, Summers, -Spear and Davis, JJ., concur.