Summary
In Dunn v. Higgins (1968), 14 Ohio St.2d 239, 43 O.O. 2d 368, 237 N.E.2d 386, the Ohio Supreme Court discussed the differences between contributory negligence and assumption of the risk and, in the second paragraph of the syllabus, indicated that assumption of the risk may apply where the evidence indicates an obvious risk to the safety of plaintiff, the injured party, caused by the negligent conduct of the defendant, but acquiesced in by the plaintiff.
Summary of this case from Mulloy v. Longaberger, Inc.Opinion
No. 40937
Decided May 29, 1968.
Negligence — "Contributory negligence" and "assumption of risk" not synonymous terms — Such defenses not mutually exclusive — Defendant's negligence acquiesced in by plaintiff — Charge to jury — Special interrogatories.
1. The terms, "contributory negligence" and "assumption or risk," are not synonymous. The former is based on carelessness and the latter on venturousness. (Paragraph one of the syllabus of Porter v. Toledo Terminal Rd. Co., 152 Ohio St. 463, approved and followed.)
2. The defenses of contributory negligence and assumption of risk are not mutually exclusive, and, where the evidence indicates an obvious risk to the safety of the plaintiff brought about by the negligent conduct of the defendant, but acquiesced in by plaintiff, it is not error on the part of the trial court to charge the jury on both defenses and allow submission of special interrogatories related thereto.
APPEAL from the Court of Appeals for Lucas County.
This action was instituted by William J. Dunn against Robert C. Higgins in the Court of Common Pleas of Lucas County to recover for injuries sustained by the former in a fall from scaffolding while both parties were working on the construction of a home for the latter. The incident occurred on October 11, 1962.
Plaintiff alleges in his amended petition that he was requested by defendant to "assist him in the installation of insulation in the residence which the defendant was constructing for himself on Higgins Lane, in Lucas County, Ohio." He also alleges that "pursuant to such request of the defendant * * * the plaintiff mounted a scaffold which had been erected by the defendant in one of the rooms of said residence and commenced to install such insulation."
Plaintiff alleges further that "while the plaintiff was standing on said scaffold, the defendant moved part of the scaffold flooring to a different position on the supporting timbers which formed a part of the scaffold structure; that in doing so the defendant negligently replaced the floor boards on said scaffold in such a position that they were not properly supported; that, also, after plaintiff had stepped onto the flooring of the scaffold which the defendant had moved and while he was standing on the same, the defendant negligently placed two ladders beneath the scaffold flooring and negligently started to go up one of said ladders and in so doing caused the flooring of the scaffold to be displaced and fall to the floor, precipitating plaintiff off the scaffold onto the floor and causing plaintiff the injuries hereinafter set forth."
The injuries incurred were extensive, involving, primarily, the fracture of the plaintiff's right femur, the subsequent deterioration of the rounded head thereof, and the final substitution, by surgical operation, of an artificial device for the ruined portion of the bone.
The case was tried before a jury. At the close of all the evidence, the defendant moved for a directed verdict, which motion was overruled. Special instructions then were requested on behalf of both parties, and given to the jury by the court — some of defendant's over objection by the plaintiff.
Following final argument, in its general charge to the jury, the court included instructions on the issues of contributory negligence, assumption of risk and unavoidable accident. Also, seven special interrogatories were submitted to the jury.
The jury returned a verdict for the defendant. Hand written upon the face of the general verdict form were the words: "That both parties were negligent and that their concurring negligence proximately caused plaintiff's injuries." This statement conflicted with the jury's answer to special interrogatory No. 3 wherein the jury found that defendant's negligence did not proximately cause plaintiff's injuries. In answer to special interrogatories Nos. 4 and 5, the jury found the plaintiff to be contributorily negligent in that he "knew or ought to have known of any danger in connection with the use of scaffolding." In answer to special interrogatory No. 6, the jury found that plaintiff's negligence contributed to proximately cause his injuries, and in answer to special interrogatory No. 7 the jury found that "plaintiff was in as good a position as defendant for ascertaining and understanding the physical circumstances surrounding the use of the scaffolding, and equally well knew and appreciated such conditions, thereby assuming the risk."
On appeal to the Court of Appeals, by a divided vote, the judgment of the Common Pleas Court was reversed, that court finding that there was "no substantial probative evidence in the record tending to show contributory negligence or assumption of risk of plaintiff, [and therefore] the court erred in its instructions to the jury on contributory negligence and assumption of risk." Further, the Court of Appeals found error on the part of the lower court as to the form of the instruction on assumption of risk, in the giving of the instruction on unavoidable accident, and in allowing special interrogatories Nos. 4, 5 and 6 to be submitted to the jury.
Judge Straub dissented on the ground that the Common Pleas Court should have allowed defendant's motion for a directed verdict at the close of plaintiff's evidence.
The cause is here pursuant to the allowance of a motion to certify the record.
Messrs. Cubbon Rice and Mr. Frank W. Cubbon, Jr., for appellee.
Messrs. Robison, Curphey O'Connell and Mr. E. Thomas Maguire, for appellant.
At the outset, it must be noted that the defendant, appellant herein, argues that the court below, by its decision, circumvented the constitutional provision that "no judgment of any court of record entered on the verdict of the jury shall be set aside or reversed on the weight of the evidence except by the concurrence of all three judges of a Court of Appeals," as embodied in Section 6, Article IV of the Constitution of Ohio.
The decision below, as previously mentioned, was by a vote of two judges to one. The Court of Appeals found assignments of error Nos. 1 through 6 to be well taken, and therefore reversed without considering assignment of error No. 7 which was the contention that the verdict was against the manifest weight of the evidence.
The defendant proposes to this court that the only possible ground for reversal presented to the court below was assignment of error No. 7 and that the finding by the court below that assignments of error Nos. 1 through 6 were well taken was only for the purpose of avoiding the unanimity required by Section 6, Article IV of the Constitution of Ohio for reversal upon the weight of the evidence.
While the lack of accord among the three judges in the Court of Appeals as to the sufficiency of the evidence is obvious as shown by Judge Straub's dissent from the majority opinion and by the further fact that were the judges all of one mind there would be no reason not to pass on assignment of error No. 7, this court is not persuaded to the view that the first six assignments of error urged before the court below were meaningless. To the contrary, we find that they pose questions difficult to resolve in light of the record in this case.
Therefore, though we are in accord with the proposition advanced by appellant — that a Court of Appeals should be prohibited from circumventing Section 6, Article IV of the Constitution of Ohio — we feel that it is not applicable to the case at hand.
We move then to a consideration of the findings made by the court below.
The Court of Appeals held that it was error for the trial court to charge the jury on the issues of contributory negligence and assumption of risk, there being no substantial probative evidence presented from which a jury might make a finding of either or both. The court based its determination upon this court's decisions in Bush v. Harvey Transfer Co., 146 Ohio St. 657, and Ricks v. Jackson, 169 Ohio St. 254.
The fifth paragraph of the syllabus in the Bush case reads as follows:
"* * * To warrant the submission of the issue of contributory negligence to the jury it is essential that some evidence be adduced tending to show that the plaintiff failed in some respect to exercise the care of an ordinarily prudent person under the same or similar circumstances and that such failure was a proximate cause of his injury * * *."
The third paragraph of the syllabus in the Jackson case reads:
"It is error to charge a jury with respect to the issue of assumption of risk where there is no evidence to support that issue."
The jury in this case found that the defendant was negligent in the manner in which he constructed the scaffolding, but that the plaintiff was also negligent in that he knew or should have known of the danger involved in the use of such makeshift scaffolding, and it was their view that the plaintiff assumed the risk of injury by consenting to work on scaffolding that was eight or nine feet high and about which plaintiff had as much knowledge as the defendant.
This court has distinguished the defenses of contributory negligence and assumption of risk in the first paragraph of the syllabus in Porter v. Toledo Terminal Rd. Co., 152 Ohio St. 463, where we held:
"The terms `contributory negligence' and `assumption of risk' are not synonymous. The former is based on carelessness and the latter on venturousness."
And this court has recognized that the two may co-exist. Ricks v. Jackson, supra ( 169 Ohio St. 254); Wever v. Hicks, 11 Ohio St.2d 230.
In the case at bar, the jury properly could, and did, find the plaintiff to have been contributorily negligent in that he knew or ought to have known of the dangerous condition of the scaffolding. The jury also could properly find, and did find, that the plaintiff acquiesced in the realized danger of working at a height of eight or nine feet from the floor on nonprofessional, movable scaffolding which was likely to become unstable.
In simple terms, the plaintiff, by the exercise of ordinary care, would have known that the scaffolding was unsturdy, but also he necessarily was aware of, and accepted, the chance that the scaffolding would become unsafe while he worked on the rigging.
The evidence in the record is sufficient to support such conclusions on the part of the jury.
Not one of the three persons present at the time of plaintiff's fall was in a position to determine the cause of plaintiff's fall.
Plaintiff testified on cross-examination that he did not know what caused his fall:
"Q. Am I correct, then, Mr. Dunn, that from your point of view that this scaffolding appeared to be strong and sturdy to you? A. Yes.
"Q. And am I correct that you do not know the cause of your fall? Is that right? A. I don't actually know what happened. I turned to the wall and when I turned the boards seemed to tilt and fall under me, and I fell over backwards.
"Q. But you don't know, is that right? A. What caused the board to tilt, no, sir, I do not."
Plaintiff's wife, Gloria Dunn, testified that she did not actually witness the start of plaintiff's fall:
"Q. Did you see your husband take a step or move about immediately before his fall? A. No.
"Q. Were you actually talking to him and looking at him immediately before his fall? A. No, — I had been talking to him. My attention was on Bob right at the time it happened."
Furthermore, defendant testified both on direct and on cross-examination that he did not see the plaintiff fall.
"Q. Now, specifically what were you doing when he fell? A. I was bending over picking up a piece of insulation and started to turn. I hadn't got all the way around before the scaffolding fell.
"Q. Will you state whether or not you had your back to him at that time? A. I had my back to him, yes, sir.
"Q. Did you see him fall? A. No, sir."
It is plaintiff's theory in this case that the tilting of the board which resulted in plaintiff's fall was caused either (a) by defendant having disturbed the scaffolding while ascending a ladder placed by defendant part way underneath the scaffolding, or (b) by plaintiff's body weight causing a board of the scaffolding to sag and come in contact with a ladder placed by defendant part way underneath the scaffolding. And there is evidence to support plaintiff's theory. Mrs. Dunn's testimony conflicts with defendant's testimony in that she claims he was ascending a ladder at the time plaintiff fell and he claims that he was on the floor facing the other direction. If defendant was on the ladder he could have disturbed the board which caused plaintiff to lose his balance. Also, there is testimony to show that a ladder had been placed part way underneath the scaffolding and a sagging board might have come in contact with a ladder so positioned so as to have the effect of tilting the board.
The jury concluded, however, that the scaffolding was makeshift in character, that plaintiff and defendant both should have known that it was dangerous, and that plaintiff's fall was his own fault. Implicit in such a determination is a rejection of plaintiff's theory in this case.
We are of the opinion that the court below erred in its determination that there was no evidence in this case to support a finding of contributory negligence and assumption of risk. We accordingly find no error on the part of the trial court for having instructed the jury as to those matters nor in submitting the special interrogatories on those issues to the jury.
We have reviewed the form of the instruction as to assumption of risk and find no error as did the court below. That instruction is worded:
"Assumption of risk is an affirmative defense, and therefore the burden of proof on this issue is upon the defendant. If you find that the defendant has established by a preponderance of the evidence that the plaintiff knew of the danger or that the danger was so obvious that he must be taken to have known of it, and the plaintiff had a conscious opportunity to avoid the danger by the use of ordinary care, then the plaintiff cannot recover. However, if the defendant fails to prove any of these foregoing elements, then the plaintiff did not assume the risk and you will dismiss it from your further consideration."
The court below also found, and the plaintiff argues, that the trial court erred in charging the jury as to unavoidable accident. Plaintiff relies upon the case of Uncapher v. Baltimore Ohio Rd. Co., 127 Ohio St. 351, as support for that position:
In paragraphs two and three of the syllabus of Uncapher, this court held:
"2. Unavoidable accident occurs only when the disaster happens from natural causes, without negligence or fault on either side.
"3. The plea of unavoidable accident is diametrically opposed to the theory of negligence in any form."
In the opinion, at page 359, Judge Stephenson remarked:
"* * * how must the pleader invoke the defense of unavoidable accident? Simple enough. He must admit the accident in question, and aver that plaintiff was not negligent in any respect, and that he (defendant) was not negligent in any respect."
Of course, defendant in this case, in addition to denying his own negligence, pleaded contributory negligence and assumption of risk — both defenses "diametrically opposed" to a theory of unavoidable accident.
But, as was recognized in Uncapher, error in a charge may not always work to the prejudice of a party in the case, and we believe that it could not have inured to the benefit of defendant in the case at bar since the special interrogatories answered by the jury clearly show that they found both parties negligent and that plaintiff's own negligence proximately caused his injuries.
Answers to special interrogatories control over a general verdict, provided there is sufficient evidence to warrant their submission to the jury and they are proper in form. Clevenger v. Huling, 3 Ohio St.2d 200. That they are to be relied upon to determine whether substantial justice has been afforded in a particular case follows a fortiori. That is the situation here.
Accordingly, it is clear from those answers that the jury found both parties negligent, and, further, that plaintiff assumed the risk of his fall and subsequent injuries and that plaintiff's actions proximately caused his injuries. It is evident that the jury placed no reliance upon the doctrine of unavoidable accident in reaching its verdict for the defendant. Therefore, we find that the charge on unavoidable accident by the trial court, though erroneous, was not prejudicial.
We find no reason to remand the cause to the Court of Appeals for a determination as to whether the verdict was against the manifest weight of the evidence. Clearly, it was not.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, O'NEILL, HERBERT and BROWN, JJ., concur.