Cleveland Provision Co. v. Hague.

This ladder could have been placed at some other part of the platform, that is, it was not necessary that it should be at the particular point where it was placed. On the day of the injury the plaintiff, while working upon this platform, had occasion to get some tools, to reach which it was necessary for him to go upon the floor beneath. He was at work at such point on the platform as that to reach the stepladder he must pass over the elevator shaft. The elevator was operated by an employe of the defendant, and he knew that the plaintiff was at work upon this platform. There is evidence on the part of the plaintiff tending to show that shortly before the accident he was seen upon the platform by the chief engineer of the defendant, or by its superintendent, or both.

On the part of the plaintiff it is claimed, and the evidence shows, that the plaintiff notified the elevator man that he was going onto this platform to work, and that he would be in danger if the elevator should be moved up or down without notice being given to him that the elevator was about to move, and that therefore he must be notified before the elevator should be moved either way, causing this shaft to revolve.

It should be said that the defendant, in the operation of its plant, needed the elevator to be moved at frequent intervals. Of course the suspension of all use of the elevator and of the moving machinery above this platform would have taken away all danger incident to the moving of such machinery; but this was not necessary, nor was it asked for by anybody. The danger to the plaintiff consisted in the moving of this machinery, including the shaft, at a time when the proximity of the plaintiff to such moving shaft or machinery was such that he was liable to be caught by it, and this could easily be avoided if the plaintiff could know in advance just when this machinery was to move; and so far as this shaft is concerned, to know in advance just when the shaft was to move.

The result of the suit was a verdict and judgment in favor of the plaintiff.

On the part of the defendant it is claimed that from the facts disclosed, which are substantially as hereinbefore stated, the court should have granted a motion which was made both

Cuyahoga County Circuit.

at the close of the plaintiff's evidence and at the close of all the evidence, that a verdict be directed for the defendant, and that the court erred in refusing to grant such a motion. One of the grounds for this claim is, that it is clear, as a matter of law, that the plaintiff contributed to his injury by his own negligence. This claim is not well founded. It is urged in support of it that if the plaintiff had placed the stepladder, or caused it to be placed, at another part of the platform, he could have reached it to go to the floor below without stepping over this shaft; that therefore there was a safe way by which he might have reached the tools which it was necessary for him to have without stepping over the elevator shaft, and the rule that where there are two ways of accomplishing a thing that needs to be done, the one a safe way and the other unsafe, he who undertakes to perform the thing must choose the safe way, or choose the unsafe at his peril. This rule does not require that one shall exercise more than ordinary care in making such selection, and this particular case would not require that the ladder must be placed at a point where it would have afforded a safe place for the plaintiff to have avoided the particular accident which came to him, provided, taking the whole situation into consideration, he placed the ladder where a man of ordinary prudence would have placed it.

It must be remembered that there was no danger in stepping over this shaft provided it should remain still during the whole time of stepping over it. It was entirely safe when the plaintiff started to step over it. He was injured because it sarted while he was stepping over it, because it then caught him and threw him in such wise that his foot caught so as to be crushed at one of the pulleys over which a chain moved. It was a question properly for the jury to determine whether the plaintiff exercised such care as the ordinarily prudent man would have exercised in such a circumstance, and we are not prepared to say that the jury found wrong on that question.

It is urged further that the plaintiff was negligent in not notifying the man in charge of the elevator that he was about to step over this shaft, because, it is said, knowing as he did that if the shaft revolved while he was stepping over it, he would be

Cleveland Provision Co. v. Hague.

placed in a dangerous position. In considering this it must be remembered that the situation was not dangerous when he attempted to step over it, provided the conditions remained until he had completed the stepping over as they were at the time he began to step over; that he had notified the elevator man to warn him when he started the shaft, because his work would be such that he was liable to be in danger when the shaft started, unless he had an opportunity to protect himself. We think it was a question fairly submitted to the jury whether it was per se negligence for the plaintiff to rely upon receiving the notice. and so this position is not sound.

On the part of the defense it is shown by the man in charge of the elevator himself that at all times prior to the happening of this accident, whenever the plaintiff was working upon this platform, notice was given to him before the shaft was set in motion, and it is testified to by him, the elevator man, that on this occasion he gave notice before he started the shaft. Upon this proposition the evidence is conflicting. But it is urged that whether this be true or not, that is, whether it be true or not that the plaintiff arranged with the elevator man that he should be notified whenever the elevator was to start, that it was negligence on the part of the plaintiff to trust to any such arrangement made with the elevator man, because, it is said, the latter went beyond the scope of his employment when he took upon himself to give notice to the plaintiff of when he would start the elevator. In support of this claim our attention is called to the case of Hall, Headington & Co. v. Poole, 94 Md. 171 [50 Atl. 704]. This case will be discussed later in this opinion, together with others cited on this proposition, contenting ourselves here with saying that we hold that the man in charge of the elevator, whose duty it was to run the elevator for the defendant in the conduct of its business, was so far the agent of the defendant as that, he having notice of the dangerous position in which the plaintiff was likely to put himself, and having notice that such danger would be avoided by his notifying the plaintiff when he would move the elevator and so put the shaft in motion, his knowledge of the arrangement was the knowledge of the defendant.

Cuyahoga County Circuit.

It is further urged on the part of the plaintiff in error that the court erred in receiving the verdict and entering judgment upon it in the absence of answers by the court, and which they failed to answer. Those questions were:

First. "Was the operation of the elevator while the plaintiff was at work upon the elevator platform, inherently dangerous to plaintiff during the entire time he was so engaged?"

To this the jury responded. "Can not answer."

Suppose the jury had answered this either way, we are unable to see that the general verdict would necessarily have been affected by that. The general verdict might well have been reached if the answer had been "Yes," and so it might well have been reached if the answer had been "No."

This applied equally to the second question, which reads: "Was the operation of the elevator while the plaintiff was at work on the platform dangerous at intervals only?"

To this the same answer was made, but we think an answer either way would not have been inconsistent with the general verdict.

The jury responded to each of the several interrogatories in the same words, "Can not answer." The other questions are:

Third. "Was the operation of the elevator while the plaintiff was at work upon the elevator platform dangerous only when he was passing to and from the work upon said platform?"

Fourth. "Was the operation of the machinery while the plaintiff was at work upon the elevator platform dangerous only when he passed over the drum shaft in going to and from the work?"

Fifth. "Could the plaintiff have gone to and from the work upon the platform with safety to himself by means of a ladder placed against the front of the platform

Sixth. "Was there any safer way for the plaintiff to go to and from the work on the elevator platform than that of passing over the drum shaft

If what has already been said in this opinion in reference to the matter of the different means by which one may go from one place to another, and the responsibility as to taking a safer course is sound, then an answer either way to any one of these questions would not necessarily have resulted in a different verdiet, notwithstanding the proposition that in choosing between

Cleveland Provision Co. v. Hague.

a safe and a dangerous way to do a thing, other things being equal, he who takes the dangerous way does it at his own peril; because the circumstances surrounding the taking the one way or the other must always be taken into consideration in determining whether ordinary care is used in the choice of the path taken. This seems to be a sufficient answer to the claim that the case should be reversed because of this failure to answer interrogatories. However, it may be said that no objections were taken at the time. True, counsel were not present when the verdict was returned, but it seems to be settled by the authorities that in order to avail oneself of each failure, there must have been exception taken or objection taken at the time. See Preferred Masonic Mut. Acc. Assn. v. Harrington, 30 O. C. C. 612 (10 N. S. 134); 20 Enc. Pleading & Practice, 352. However, we do not here determine that the rule applies where the party or attorney is not present.

It is further urged that the court erred in admitting certain offered evidence over the objection of the defendant.

The first of these objections is shown by the record at page 75, where this question was asked of the plaintiff by his own counsel: "Mr. Hague, was it necessary to shut the elevator down for you to do your work up there?" It is said this is asking for a conclusion, and this is true in a sense, but the admission of the answer to this question was not prejudicial to the defendant, especially when the answer to that question is taken into consideration. The answer was: "It was not." And this is equally true of another question appearing on the same page of the record: "When did it become necessary to stop the operation of the elevator?" The answer was: "Why, it only became necessary when we were crossing or pulling the wires, going to and from." There was no prejudice in this. It clearly conveyed to the jury only a proposition which was so thoroughly shown by all the evidence that the only danger to which the plaintiff was subjected by the moving of the elevator shaft was the danger that he might be caught when he was required to cross over it, if it were then in motion.

On page 83 of the record, the plaintiff offered in evidence a cut or picture of a pulley with a chain over it; before this was