61 Ohio Law. Abs. 102 | Ohio Ct. App. | 1951
OPINION
This is an appeal on questions of law from a judgment of the Common Pleas Court on a directed verdict for the defendants at the conclusion of a trial in which the parties introduced all of their evidence. Issues were drawn on the third amended petition and separate answer of each defendant.
The specific charges of negligence were:
(1) The board upon which plaintiff and others were seated was not securely fastened to the tread or notch of the supporting timber upon which it rested.
(2) Defendants knew, or with the exercise of reasonable care, would have known that said board or timber so insecurely fastened would be loosened and caused to fall and injure plaintiff.
The petition further avers that the defendants had specific notice of the insecure fastening of the top plank of the bleachers. The defendants answered by general denials.
Plaintiff, having introduced evidence showing the manner of construction of the bleachers and of the fall of plaintiff, rested. Thereafter his case was reopened and he offered further testimony from athletic directors of . various high schools respecting their experience in the use of bleachers of the same type as those involved in the accident of plaintiff. At the conclusion of plaintiff’s case, defendant, Haft, moved that he be dismissed as a party defendant and both defendants moved for a directed verdict which motions were overruled. The defendants then introduced testimony, at great length, of athletic directors of high schools and colleges and defendant Haft and others, among whom was a representative of the company .which manufactured the bleachers in question, the gist of which was that throughout the many years that the same type of bleachers had been in
The trial judge relied upon Englehardt v. Phillips, 136 Oh St 73, and particularly upon the second syllabus thereof and the language of Judge Hart at page 78 of the opinion:
“Until specific conduct involving such unreasonable risk to the plaintiff is made manifest by some evidence, there is no issue to submit to the jury.”
The trial judge added:
“In other words, where there is an entire absence of any difficulty arising from the use of a bleacher of this type, and in the further fact that the evidence is to the contrary that no such accident had ever taken place, it is the opinion of the Court that a reasonable conclusion would be that they had a right to believe that these bleachers were reasonably safe.”
The jury returned the verdict, judgment was entered thereon and motion for new trial filed and overruled.
Appellant assigns eight grounds of error. The first, second, third, fifth, and sixth of which are based upon the action of the trial judge in directing the verdict for the defendants. The fourth is error in refusing to permit plaintiff leave to amend the third amended petition by charging negligence in the failure of defendants to place guard rails back of the upper row of seats on the bleachers. Without comment we hold that this assignment of error is not well made because the trial judge did not abuse his discretion in refusing the amendment.
The eighth assignment of error is directed to repeated use of leading questions by counsel for appellants on cross-examination. This assignment is not well made nor do any of the other errors assigned require attention save those relating to the directed verdict.
The law controlling the right and duty of the trial judge to direct a verdict is discussed in several Ohio cases. Laub Baking Co. v. Middleton, 118 Oh St 106; Hamden Lodge v. Ohio Fuel Gas Co. 127 Oh St 469, and particularly the third and fourth syllabi of the latter case.
Third:
“Upon motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. But if upon any essential
Fourth:
“Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is,for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence.”
In discussing the evidence, therefore, we given it the most favorable interpretation in behalf of the plaintiff.
Two photographs of a section of the bleachers involved in this case is found in the record. It is not necessary to our narrow question to consider any aspect of the construction of the bleachers other than that which pertains to the seating planks and the manner in which they were held in place and particularly the top plank whereon plaintiff was seated. It is manifest that there was a hazard to one seated on the top plank of the bleachers not found in any other row of seats for the reason that should any other plank be removed an occupant, in probability, would not fall because he would be protected by seats or footboards above him. If the top planks on these bleachers were insecure it would not require extensive measures to correct the condition because there were only two planks to be considered.
It develops that the seating planks were placed in seat irons which were at the bottom nine and one-half inches wide. At the ends of the bottom piece and connected to it were metal ears one inch high. The seat board according to the testimony of defendant Turner was one and five-eighths inches thick, nine and one-half to ten inches wide and fifteen to eighteen feet long. The first board was laid into the metal brackets, the brackets being fixed to risers which rested on horses which were three and one-half to four feet apart. Thus, the first board laid would lie level on each of four metal brackets. In the bleachers shown, the defendants’ Exhibit 2, the first seating board laid at the top would rest on the level in each of the four brackets. The next board, to the south, the one upon which the plaintiff was seated was then placed on top of the first board and extended over and onto three other brackets. This board would not be level but would incline the thickness of the board upon which it rested, one and five-eighths inches, through its length and over the last bracket to the south.
There is some difference in testimony as to the height of the end of the metal bracket varying from one to one and one-
One witness, Mr. Salzgeber, testified that the brackets holding the upper board upon which plaintiff sat bent out a little to the east. Another witness, Mr. Boyd, said that the brackets on the top board were old and worn, had rounded surface and were smooth. Another witness testified that the top board did not rest level on the metal bracket at the south end of the bleacher, as appears in defendant’s photograph, Exhibit 1. Another witness, Mr. Cresser, who was seated on the top board said that there were circular humps on the end of the bracket to keep the board in; that the humps turned away from the bracket and that there was nothing to keep the board from being raised. The representative of the' company which manufactured the bleachers said that at a game where people are jumping up and down the seat board could be kicked or pushed out of place.
Pour witnesses, in addition to the plaintiff, testified as to how the accident occurred from which it could be concluded that when all the occupants on the top plank arose to watch an exciting play in the game in some 'manner force was exerted against the board and it was caused to leave its place in the brackets. All of these witnesses, but one, say the board fell to the ground. All of those seated on this board fell to the ground except one who was suspended head down and later lifted up to safety.
It is our judgment that upon the testimony which we have mentioned, the plaintiff made a prima facie case as to the negligence set out in the petition. The defendant knew of the construction of the bleachers, the size and dimension of the brackets and the manner in which the seating boards rested in these brackets. Upon the testimony actual notice of the condition set up in the petition appeared. Constructive notice did not have to be shown and whether it was
We believe that the testimony which was probative of the insecurity of the seating boards in bleachers of like type to those under consideration was competent as it reflected upon the safety for plaintiff and those who occupied the seats. The mere fact that the bleachers were to be used for temporary purposes only did not lessen the obligation of the defendants to exercise ordinary care to provide reasonably safe seating arrangements for occupants of the bleachers.
In Bent v. Jonet (Wis.) 252 N. W. 290, the Court had under consideration the question whether temporary wooded bleachers erected for observing football games was a “public building” under a safety statute of that state. It held that such bleachers were public buildings. It was urged that the temporary character of the bleacher structure precluded it being a public building. The Court pointed out that the objective of the statute is to insure safety by the broadest sort of provisions with respect to the kind of places affected and said:
“The person resorting to a public place is quite apt, if not more so, to be injured by the collapse or improper design of a temporary structure as that of a permanent one. No reason is perceived why there should be a distinction between these types of structure.”
The action in the cited case was for personal injuries sustained by a spectator at a football game when he fell from the top of temporary wooden bleachers which as described in the opinion was almost identical in structure to those in the instant case. The accident in Bent v. Jonet occurred in September, 1931, and the opinion in the Supreme Court of Wisconsin was released in January, 1934.
On the question of the specific notice to defendants as pleaded, Mr. Young, Principal of West High School, testified that he had rented bleachers like those here under con
There was also testimony as to other methods of securing the seating boards to the piece upon which they rented either by laying them end to end and screwing them to the piece of material under them or by metal strips over the boards where they lapped. The company which manufactured the bleachers under consideration also made another type of bleacher wherein the seat board could not be moved without the removal of the attachment fixing it to the piece under it. It was testified that twenty per cent of the output of this company was in the type of structure here involved. Most of the
We find no insuperable bar to the submission of the case to a jury by the adjudication in Englehardt v. Phillips, supra. Certainly it may not be said that solely because there had been no reports of a seating board slipping from its brackets or of an accident caused by the defect here complained of that it conclusively appeared that it was not an inadequate safety fixture.
The test of the second syllabus in the Englehardt case may be applied to the evidence and from it, it may be said that there was affirmative evidence tending to show that the conduct of the defendants in providing the bleachers with the top seat board as they were erected fell below the standard represented by the conduct of reasonable men under the same or similar circumstances.
Judge Hart wrote the opinion in the Englehardt case and also in Hilleary v. Bromley, 61 N. E. (2d) 731, decided by this Court and reversed in 146 Oh St 214. The latter case though not directly in point has some application here. In that case Hilleary was an independent subcontractor of Bromley Siding Company which had contracted with the owner to apply siding on his dwelling house in the city of Columbus. The Siding Company was to furnish ladders to Hilleary of sufficient strength to bear the weight of two men, their working equipment and material of about 75 pounds. The ladders furnished by the defendant were new, had been given a primer coat of paint but had not been specially inspected. However, the plaintiff inspected the ladders every day for the several days that they were in use and discovered no defect in them. One of the ladders broke causing the plaintiff to fall and to be severely injured. An examination of the ladder after the fall indicated that there was a defect in the grain of the wood of which it was constructed. This Court held that there was no showing of notice to the defendant of any defect in the ladder and that as a matter of law its conduct was not negligent and affirmed a directed verdict for. the defendant. The Supreme Court held that plaintiff made a case for the jury. Judge Hart cited 2 Restatement of Torts, 1064, Section 392:
“One who supplies to another, directly or through a third
In the Hilleary case the only possible negligence that could have been imputed to the defendant was its failure to take notice of a defect in the ladder which the plaintiff by repeated inspections could not discover. Contrast the factual development in the instant case where the defect which the jury had a right to find caused the plaintiff’s fall was plainly observable to those who erected the bleachers.
In Wickstrom v. Ringling Bros., Barnum & Bailey Combined Shows, Inc., 313 Ill. App. 640, 40 N. E. (2d) 585, 11 Negligence and Compensation Cases Annotated (N. S.) 720, the plaintiff attended a circus and occupied a seat in a grandstand and in moving over at the request of an usher fell through an opening between bleacher boards. It was held that the defendant was negligent in leaving an opening between the boards and in failing to provide a footrest. The Court held that it was the obligation of the defendant to furnish the plaintiff a reasonably safe place to sit and to provide means whereby he could go to and from his seat on the bleachers and to change seats, if necessary, without endangering his safety. Among other things it was contended that the trial court erred in refusing to permit the defendant to introduce evidence that the seats in question were the standard type of seats used by circuses as general admission seats. The Court held against this contention and said that the question “whether the seats used were of the standard type used by circuses as general admission seats would not prove ordinary or reasonable care under the facts of a particular circus or the circumstances surrounding a particular case. We do not hold the testimony inadmissible as to the extent to which the bleachers had been used without discovery of the unsafe condition here claimed, Railroad Co. v. Anderson 11 O. C. D. 765, but that such evidence is not conclusive.
“If it be conceded that the theatre was constructed after a universal and long-followed design, it does not necessarily follow that such care was taken as reasonable prudence would require.”
It was testified that another person had prior to the injury of the plaintiff suffered a similar accident. Several of appellee’s witnesses were working in the theatre when the accident occurred. They testified that no one of them had known of any occasion when anyone’s foot or shoe had descended into the hole.
We are of opinion that upon the plaintiff’s testimony there was an issue of fact as to the negligence of the defendants which should have been submitted to the jury.
It is urged that defendant Haft should have been dismissed from the case because he had granted to defendant Turner as a concession the right to take his bleachers, erect them and that the pay which he received was mere compensation for that privilege and was based upon one-half of the net profit. However, upon the testimony of Turner and other facts appearing the jury could have found that there was a joint enterprise or partnership between Haft and Turner in the transaction.
For the error in the action of the trial judge in directing a verdict for the defendants the judgment will be reversed and the cause remanded for new trial.