Kile Mfg. Co. v. Peterson. EVIDENCE-NEGLIGENCE. [Summit (8th) Circuit Court, April Term, 1909.] KILE MANUFACTURING CO. V. JOSEPH PETERSON. Expert Opinion Evidence Inadmissible as to Defect in Machinery not Complicated. It is improper to permit an expert witness to give his opinion as to whether it was safe to operate an ordinary foot brake which had been worn smooth through use, so that the foot was apt to slip off of it, there being nothing complicated about the brake, and the question being the ultimate fact for the jury to find from all the evidence in the case. WINCH, J. Joseph Peterson was injured while in the service of the Kile Manufacturing Co., unloading logs from a car by means of a derrick. He sued the company for his damages thus sustained and recovered a judgment. The trial judge succinctly stated to the jury the specifications of negligence which Peterson must prove: "First. That the defendant company negligently failed and neglected to provide a safe and approved style of brake and lever to control the movement and operation of the hoisting machine referred to in this action, commonly known as the foot brake-foot brake or lever. "Second. That the foot brake or lever furnished and provided by the defendant company had been carelessly and negligently allowed and permitted to become and remain smooth, slippery and ineffectual to safely control the movement and operation of said hoisting machine. "Third. That the defendant company was careless and negligent in placing in control of said hoisting machine an unfit, unskilled and incompetent person for that purpose.' There was no evidence introduced tending to prove that the style of brake used was not proper, but there was evidence tending to show that the brake had been permitted to become smooth, slippery and ineffectual to safely control the movement of the hoisting machine and that it was operated at the time of the accident by an incompetent person. Summit County Circuit. With these ultimate facts in mind, which the jury was to determine, was it proper to permit the witness, Flynn, who qualified as an expert, to testify as shown on page 112 of the bill of exceptions as follows: "Q. Mr. Flynn, if that brake, that foot brake controlling the boom, up and down movement of the boom, when a log was on it or when off, was controlled by a foot brake at the time of the injury, the place where the foot went on, the part-the handle where the foot went on to control it was smooth and worn and not protected on the sides to prevent a slipping, would you say that that was a reasonably safe appliance in connection with which Mr. Peterson had to do his work out on the car hooking these tongs into the logs? "Objected to. "THE COURT: Reasonably safe appliances for the operation of said hoisting machinery, that is what you mean. "Objection overruled; defendant excepts. "A. I could not say it was safe. "Q. What would you say about it being unsafe? "THE COURT: The question was whether it was reasonably safe, that is the question, what is your answer? "Objected to; objection overruled; defendant excepts. This was one of the questions the judge finally submitted to the jury, and it would seem that it was improper to substitute the judgment of Flynn for that of the jury. There was nothing intricate or complicated about the machine. If the brake operated by the foot was smooth, the foot would likely slip off of it, particularly if operated by an incompetent man. If the foot slipped from the brake, an accident was likely to happen, because the hoisting machine would immediately lower the log. One does not need to be an expert to know this and the facts were all before the jury for it to draw its own conclusion as to whether the appliance was safe, in the condition and under the circumstances shown in evidence which resulted in Peterson's injury. The rule is well stated in the first two paragraphs of the syllabus of the case of Ohio and Indiana Torpedo Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. 457; 76 Am. St. 437], as follows: "Opinion evidence may not be given where an opinion is asked as to the precise, ultimate fact in issue which is to be tried Kile Mfg. Co. v. Peterson. by the jury, but such testimony is not necessarily incompetent if it calls for an opinion as to a matter which is evidentiary only and merely tends to establish a fact which may be involved in the issue. "Such evidence is not competent where the matter inquired about is one within the common knowledge of men of ordinary information, and it is practicable to place before the jury all the primary facts upon which a conclusion is to be based, but where a witness is shown to be learned, skilled or experienced in a particular business, he may be asked to give an opinion as to pertinent matters which are not the subject of common knowledge, and as to which the jury is not so competent as is the witness to draw the proper conclusion from the general facts proven." See also the case of Baltimore & Ohio Ry. v. Schultz, 43 Ohio St. 270 [1 N. E. 324; 54 Am. Rep. 805], and cases there cited. It is likely that the trial judge committed the error of permitting Flynn to answer the question complained of through inadvertance, for he ruled properly upon objection of defendant below to a similar question, as shown on page 108, and upon objection of plaintiff below to a like question, as shown on page 296, but the prejudice likely to result from such incompetent evidence was enhanced in this case by the charge of the court upon the weight to be given the opinions of experts, as found upon page 380: "Certain witnesses have testified as to their opinions touching the operation of the hoisting machine and its different appliances. Such evidence is admissible and should be considered by the jury, together with all the other evidence in the case, giving such weight and credit thereto as in the fair and reasonable judgment of the jury it is justly entitled to." We find no other errors in the record prejudicial to the rights of the plaintiff in error; the verdict does not seem excessive, or unwarranted by the evidence. Judgment reversed for error in ruling on evidence. Henry and Marvin, JJ., concur. Summit County Circuit. MASTER AND SERVANT. [Summit (8th) Circuit Court, April Term, 1909.] Winch, Henry and Marvin, JJ. *AKRON SELLE Co. v. HERMAN JOST. 1. Employer not Absolved from Negligence Liability by Letting of Job to Independent Contractor. An employer of labor can not absolve himself from liability for leaving a ditch on his premises unguarded, into which his employes are liable to fall and be injured, by showing that he let the contract for digging the ditch to an independent contractor. 2 Terms of Verbal Contract for Jury and not to be Construed by Court. It is not for the court to construe the terms of a verbal contract but for the jury to determine what the terms of the contract are. ERROR. WINCH, J. Jost recovered for damages received through the alleged negligence of the company in leaving a ditch unguarded upon its premises where he worked into which he fell and broke his leg. The company claimed Jost himself was careless and that, in any event, it was not liable because the ditch had been dug and left unguarded by an independent contractor, over whom it had no control, to whom it had let the work of building an addition to its factory. The accident happened after dark as Jost stepped into the yard for the purpose of attending to a call of nature. Without going into the evidence in the case, which we have carefully considered, we think the jury was justified in finding that Jost was not guilty of contributory negligence. Conceding that the work was being done by an independent contractor and that the company retained no control over the doing of the work, stiill we think this can not avail as a defense under the circumstances of this case. One can not dig a pit upon his own premises where he knows his employes are accustomed to *Affirmed, no op., Akron Selle Co. v. Jost, 85 Ohio St. 452. Akron Selle Co. v. Jost. go and liable to injury and thus be free from blame; neither can he hire somebody else to dig it and thus absolve himself from liability. The rule in Ohio is well stated as follows: "If the necessary or probable effect of the performance of the work would be to create a nuisance or to injure or expose third person to danger, unless the work is carefully guarded, then the defendant is not relieved from liability because the work is done by a contractor over whom the defendant has no control in the manner and mode of doing it." Ohio Southern Ry. v. Morey, 47 Ohio St. 207 [24 N. E. 269; 7 L. R. A. 701]; Covington & C. Bridge Co. v. Steinbrock, 61 Ohio St. 215 [55 N. E. 618; 76 Am. St. 375]; Hawver v. Whalen, 49 Ohio St. 69 [29 N. E. 1049; 14 L. R. A. 828]. This rule the trial judge gave to the jury and is warrant for plaintiff's request to charge, which was given, and the fault with the company's sixth request to charge is that it ignored the fact that the performance of this work, under the circumstances shown by the evidence, exposed Jost to danger. The company's fourth request to charge was also properly refused because it made the fact that the company had provided a urinal at a distant part of the shop an absolute defense if its employe happened to fall into an unguarded ditch somewhere else on its premises when going to some other place to relieve himself. On this point it may be said that it was shown in evidence that the company had knowledge that its employes were accustomed to use the place Jost was going to, for that purpose, and no knowledge of any rule against it was brought home to Jost. The proposition that it was for the court to construe the verbal contract under which the independent contractor was working, is untenable. It was for the jury to determine what the terms of the contract were. How could the court construe the contract before the jury had determined its terms. Having examined all the allegations of error and finding none well taken, the judgment is affirmed. Henry and Marvin, JJ., concur. |