Opinion
No. 28694
Decided April 29, 1942.
Negligence — Specific safety requirements — Section 1027, General Code — Applicable to municipal employees and invitees of contractor — Removal of gear guard for repairing violates specific requirement, when — Workman may recover damages from third person — Although workman's employer complied with compensation law.
1. A municipal corporation is subject to the specific requirements of Section 1027, General Code, for the protection of the lives, health and safety of its own employees and also of invitees employed by its contractor. ( State, ex rel. Post, v. Industrial Commission, 127 Ohio St. 187, approved and followed.)
2. The removal of a gear guard for the purpose of repair constitutes a violation of such specific requirements when the dangerous machinery is permitted to remain in use while thus exposed.
3. A workman who has been injured by the negligence of a third person may nevertheless maintain an action to recover damages from such third person even though the workman's employer has complied with the provisions of the compensation law. ( Trumbull Cliffs Furnace Co. v. Shachovsky, 111 Ohio St. 791, approved and followed.)
APPEAL from the Court of Appeals of Mahoning county.
The plaintiff, William George, instituted this action in the Court of Common Pleas to recover damages for personal injuries suffered August 1, 1938, while he was using an unguarded electric drill press in a blacksmith shop owned and maintained by the defendant, the city of Youngstown.
The plaintiff was not an employee of the defendant city but of the Works Progress Administration, an agency of the federal government. This agency and the city had entered into a contract whereby the former agreed to construct certain sewers in and for the city. One of the terms of the contract provided that the city should permit the federal agency to use certain equipment and shops owned and maintained by the city. It was in one of these shops that the plaintiff was working at the time he was injured. His occupation is that of a blacksmith, and his foreman instructed him to go to the shop and use the electric press to drill holes in two pieces of steel which were to be assembled in the form of a tool with which to move and tamp concrete. While the plaintiff was engaged in drilling the holes his left hand came into contact with the unguarded gears of the press, and part of one finger was severed.
The trial resulted in a verdict and judgment for the plaintiff.
Upon the defendant's appeal to the Court of Appeals on questions of law the judgment was affirmed.
The case is in this court for review by reason of the allowance of the defendant's motion to certify the record.
Mr. L.M. Cailor, for appellee.
Mr. John A. Willo, director of law, Mr. Homer E. Carlyle and Mr. I. Freeman, for appellant.
The plaintiff predicates his claim upon the negligence of the defendant city in failing to comply with the specific requirement of Section 1027, General Code, which reads in part as follows:
"The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein or any part thereof as follows: * * *
"7. They shall guard all saws, wood-cutting, wood-shaping and all other dangerous machinery."
In the case of State, ex rel. Post, v. Industrial Commission, 127 Ohio St. 187, 187 N.E. 719, this court held that municipal corporations are subject to the specific requirements of the foregoing section for the protection of the lives, health and safety of their employees. However, the defendant municipality seems to discount the value of this precedent by observing that under the conceded facts in the instant case the plaintiff was not employed by it but by the federal agency; and it is insisted that the plaintiff was a mere licensee. It is true that the plaintiff was not an employee of the municipality, but a study of the record discloses no evidence to indicate that he was less than an invitee. On the contrary, under the contract between the city and the federal agency the latter's employees were not only permitted to use the former's equipment and shops but the agreement provided that the city should receive credit therefor upon its share of the cost of the improvement. Furthermore, the plans and specifications were prepared by the city, and the work was performed under the supervision of the city's construction engineer. On each of the six or eight occasions the plaintiff used the city's drill press he was instructed so to do by the city's assistant construction engineer. Under these circumstances there is no apparent reason for exempting the municipality from the specific requirement of Section 1027, General Code.
The defendant's next contention is that, even if the city be subject to the foregoing requirement, there was no violation thereof, inasmuch as the drill press guard had been removed but temporarily for the purpose of repairing it. Again there is no evidence to substantiate the defendant's claim. When the guard became so defective that it no longer constituted adequate protection from the dangerous gears, the city permitted the guard to be removed and an old coffee can or bucket substituted for it; and later when this makeshift, too, was found dangerous, the can likewise was removed, leaving the gears exposed at the top of the press which was approximately six feet in height. The plaintiff's injury occurred on the day following the removal of the can. He did not notice that the gears had been left exposed near the hand lever, and no one informed him of this condition. Clearly the defendant violated the statutory requirement.
The defendant further contends that the plaintiff was guilty of contributory negligence as a matter of law. This issue was properly submitted to the jury as a question of fact, and the verdict was returned in favor of the plaintiff.
The defendant's next contention is that the plaintiff has no right of action against it for the reason that as an employee of the federal agency he is relegated to a claim for compensation under state or federal statutes providing therefor. This overlooks the settled rule that workmen's compensation statutes relate solely to the relationship of employer and employee. ( Trumbull Cliffs Furnace Co. v. Shachovsky, 111 Ohio St. 791, 146 N.E. 306.) The plaintiff was not an employee of the defendant city.
Finally, the defendant contends that in maintaining and operating its blacksmith shop it was engaged in a governmental and not a proprietary function, and therefore sustained no liability. This is based upon the theory that the city was engaged in the construction of a sewer — an operation which this court has held to be governmental. But again the record discloses no evidence to sustain the defendant's contention. The blacksmith shop was not established or maintained for the purpose of sewer construction. Rather it was used for "general work," and the fact that the federal agency was permitted to make temporary use of it was a mere incident.
The judgment for the plaintiff must be affirmed.
Judgment affirmed.
TURNER, WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.