Opinion
Decided January 9, 1928.
Negligence — Assumption of risk by continuing to use simple tool — Defective harness line — Tool, apparatus and appliance, construed — Section 6245, General Code — Motion to direct verdict waived by not renewing at close of all evidence — Error proceedings — Final judgment cannot be rendered, when — Sufficiency of petition and evidence not passed upon by trial court.
1. Employee, continuing use of defective harness lines after employer promised to replace same and told employee to continue using them until replaced, assumed risk, under Section 6245, General Code, and could not recover for injury where line broke and employee ran to head of horse to catch bridle and horse stepped upon him, since word "tool" in statute means any instrument or apparatus necessary to person in efficient prosecution of his trade or calling, and reins with which horse is guided are an "apparatus" or "appliance" within that definition.
2. Where motion to direct jury to return verdict in favor of defendant was made at close of evidence offered for plaintiff, but motion was not renewed at close of all evidence, it must be deemed to have been waived.
3. Where it was necessary to reverse judgment because petition failed to state cause of action and because plaintiff assumed risk, court cannot render final judgment in favor of defendant, where trial court was not asked to pass on sufficiency of petition or evidence.
ERROR: Court of Appeals for Lucas county.
Messrs. Deeds Cole, for plaintiff in error.
Mr. John E. Steele and Mr. W.H. McLellan, Jr., for defendant in error.
Charles H. Stahl was the plaintiff in the court of common pleas in an action to recover damages for personal injuries, and the trial resulted in a verdict and judgment in his favor for $500.
It is urged that the judgment should be reversed for numerous errors claimed to have been committed at the trial, among which are the claim that the petition fails to state a cause of action and that the plaintiff in the trial court assumed the risk. The petition avers, in substance, that the plaintiff was employed by Albert B. Woodman to care for his peach orchard on Catawba Island, and in the performance of that work was supplied with a horse and wagon with which to haul the peaches. He avers that about October 4, 1925, while he was using the horse, the right line of the harness broke; that he ran to the head of the horse to catch the bridle, and the horse stepped upon him and struck him, resulting in his injury. He further avers that he was using the harness which had been designated by the defendant, and had informed the defendant shortly before October 4, 1925, that the horse was hard-bitted and the harness was old, rotten, and weak, and the lines not strong enough to control the horse, and had requested the defendant to have the harness, and especially the lines, repaired; and he further avers that the defendant promised to replace the harness and lines in a short time and told plaintiff that until he could replace them he should continue to use them.
Plaintiff avers that the defendant did not regularly employ more than one person and had not complied with the laws of Ohio providing for compensation of employees injured in the course of their employment.
Counsel for plaintiff in error insist that the defective harness and lines or reins, and the promise to repair, bring the case within the principle announced in McGill v. Cleveland Southwestern Traction Co., 79 Ohio St. 203, 86 N.E. 989, 19 L.R.A. (N.S.), 793, 128 Am. St. Rep., 705, commonly known as the "stepladder case." In that case it was held that an employee, in continuing the use of a simple tool, after a promise by the employer to repair the same, assumed the risk and could not recover. The case cited collects the authorities and gives the reasons for the rule under which an employee assumes the risk of injury in case of a promise to remedy a defect in a simple tool or appliance. In that case the court cites with approval Meador v. Lake Shore Michigan Southern Ry. Co., 138 Ind. 290, 37 N.E. 721, 46 Am. St. Rep., 384, in which it was held that a common laborer, who uses an agricultural implement to which he is accustomed, and in regard to which he has complete knowledge, in working upon a farm, is not entitled to recover for injuries suffered after making complaint to the employer that the implement or utensil is defective, if he continues his work after a promise of the employer to repair the defect. The word "tool' has a very broad meaning and has been defined as any instrument or apparatus necessary to a person in the efficient prosecution of his trade or calling, and within that definition the reins with which a horse is guided may well be an "apparatus" or "appliance."
Section 6245, General Code, excepts simple tools as being implements or apparatus in the use of which the employee assumes the risk, and is not permitted to recover. Clearly, the petition does not state a cause of action, and it is apparent that the plaintiff assumed the risk of his own injury.
No demurrer was filed to the petition, and no objection was made at the opening of the trial to the introduction of any evidence, and no motion was made at the conclusion of all of the evidence to direct a verdict for the defendant, nor was the trial judge requested to instruct the jury to return a verdict for the defendant. It is true that a motion to direct the jury to return a verdict in favor of the defendant was made at the conclusion of the evidence offered on behalf of the plaintiff, but that motion was not renewed at the close of all of the evidence and therefore must be deemed to have been waived. Cincinnati Traction Co. v. Durack, Admr., 78 Ohio St. 243, 85 N.E. 38, 14 Ann. Cas., 218; City of Zanesville v. Stotts, 88 Ohio St. 557, 160 N.E. 1051; Youngstown Suburban Ry. Co. v. Faulk, 114 Ohio St. 572, 578, 151 N.E. 747.
We also call attention to Hogan v. Baltimore Ohio Rd. Co., (C.C.A.) 15 F.2d 739. While it is necessary to reverse the judgment in this case because the petition fails to state a cause of action, and because the plaintiff assumed the risk of his injury in continuing the use of the defective harness, known to him to be such, yet we are unable to render a final judgment in favor of the plaintiff in error because the trial court was not asked to pass upon the sufficiency of the petition or the evidence.
The judgment will be reversed and the cause remanded for further proceedings.
Judgment reversed.
WILLIAMS and LLOYD, JJ., concur.