This case arises out of an accident which occurred on August 9, 1963, in the overpass area where Interstate route 75 passes over Marshall Avenue. The plaintiff, who was a painter for twenty-two years, was engaged with other painters in the painting of the underside of what we shall hereafter refer to as the bridge. The rigging by which plaintiff and his fellow workers reached the underside of the bridge was composed of spans of cables upon which the painters placed scaffolds where the men stood to do their painting. These cables ran from north to south, the general direction of Marshall Avenue being from east to west.
The testimony shows that plaintiff, with his fellow painters, erected the rigging with which they were all familiar. As a matter of fact, in one place in his testimony plaintiff uses the first person in describing the operation of erecting the cables; there is no question of plaintiff's familiarity and participation in the erection of the cables on the job on which he received his injuries.
Marshall Avenue is a four-lane highway — two of the lanes being blocked off because of incompleted road construction; the lanes nearest the center, east and west, were open for travel to the general public. The painting was being done to some sixteen girders with their beams which were 140 feet long. Painting had gone on for a week. Four painters, of which plaintiff was one, employed by the Campbell Contracting Company, were engaged in the painting operation.
Defendant's truck, traveling eastward, going at the rate of ten to fifteen miles per hour, cleared the first two cables but came in contact with the third cable, causing plaintiff to be thrown to the ground. Plaintiff received fractures of his pelvis, necessitating confinement in hospitals for different periods of time; there is no question that plaintiff's injuries are substantial.
The cables are clamped down on each end with steel clamps and are pulled tight by means of a ratchet which enables the painters to control the sag of the cables upon which their scaffolds are placed. The lanes of travel not in use had barrels or drums on them on which signs appeared bearing the following words: "Danger — Painters Overhead," with arrows pointing upward. These signs are put out by the painters each morning when the men start to paint. *Page 20
As plaintiff was standing up, painting, his view was obstructed by the beams; he could not see east or west unless he sat down or stooped to look underneath the beams. As a result of this, the evidence indicates that plaintiff and his fellow painters were provided with guardsmen or flagmen whose duty it was to flag down trucks, such as the defendant's, to check the height of the truck to determine whether it could clear any cable which might be sagging. When a cable was sagging, the men on the platform of the sagging cable would remove their weight by grasping the flange of the beams and raising their bodies off the platform. The plaintiff testified he did not know whether the flagman were functioning or not at the time of the accident. The flagmen also had the duty of keeping the painters supplied with paint. This was provided by means of a rope. There is no dispute that, about a minute or less before the accident, one of the so-called guardsmen was supplying plaintiff with paint and that at that time plaintiff was painting over the north side of the bridge over the westbound lane.
At the speed at which the trailer truck of defendant was traveling, the driver negotiated about 135 feet of the underpass from the western to the eastern opening. He saw the signs. The state inspector, Carl Meyer, who was not one of the guardsmen or signal men and who was on the sidewalk and twenty-five feet west of the cable which was struck, after the truck cleared the first two cables yelled, "Stop! Hold it!" The truck stopped within ten to twelve feet and was over halfway out from under the underpass.
The defendant's claim that plaintiff created a nuisance by stretching cables over the highway is without merit. The state Highway Department ordered the painting done and furnished an inspector to check the performance thereof. The temporary interference with a portion of traffic on the highway does not constitute a nuisance.
The defendant makes the contention that plaintiff assumed the risk of anything that might happen to him because of the method he undertook in performing his job. This is not the law. Plaintiff did not assume the risk of injury by anyone using the highway in an unlawful manner. In Ricks v. Jackson, 169 Ohio St. 254, the second paragraph of the syllabus states as follows: *Page 21
"One using a highway does not assume the risk of the negligent operation of a vehicle thereon where such one does not know of such negligent operation in sufficient time to avoid its consequences by the exercise of ordinary care."
In the opinion the court uses this language, however:
"It may be that the jury could have found that plaintiff wasnegligent because he did not use ordinary care to avoid risks,even from the negligence of others, which he should in the exercise of ordinary care have anticipated" (emphasis added), but there is no evidence tending to prove that plaintiff knew of the negligent operation of defendant's truck or even that he had an opportunity to know of it in time to do anything about it.
Coming now to the special verdicts and the matters which cause my dissent: The jury found that defendant was negligent, and properly so, and that such negligence was a proximate cause of the accident. The evidence is undisputed that the truck driver had his attention diverted by a pedestrian who was passing by, and this alone sustained the jury's finding that the driver "did not observe existing conditions in the constructionarea." (Emphasis added.)
With reference to the special verdict finding that plaintiff assumed the risk, I think that there was no application of the doctrine of "assumption of the risk" in this case, as is pointed out, supra.
However, the jury did have this in mind when it found plaintiff was negligent; the only negligence of which the jury could have found plaintiff guilty was that he did not use ordinary care to avoid risks, even from the negligence of others, which he should in the exercise of ordinary care have anticipated. (Ricks v. Jackson, supra.) This is exactly what prompted the jury to find in its special verdict that Joseph Baker, the plaintiff, was negligent. The jury then finds that this negligence of the plaintiff was not a proximate cause of any injuries which plaintiff sustained. With this last finding of the jury I cannot agree. I think that this record is replete with evidence that plaintiff did not use ordinary care to avoid risks which his twenty-two years of similar experience dictate that he should, in the exercise of ordinary care, have anticipated. Plaintiff's negligence did not consist of conduct which terminated but which, nevertheless, thereafter contributed to cause the accident; *Page 22 his negligence was continuing down to the happening of the accident and, therefore, combining with the negligence of defendant, necessarily was a proximate cause of his injuries.
From the record, the testimony of plaintiff discloses the following:
"Q. You mean sometimes you raised the cable to let the trucks through? A. Yes.
"Q. You would hang on to the girder and get your weight off the scaffold so the cable would go up? A. I done that a couple of times to let trucks through."
Plaintiff also said he didn't know the clearance distance between the cables and the road beneath.
"Q. So that this truck of the Continental Transportation Lines, Inc., cleared the first cable, didn't it? A. Yes, sir, it had to."
In response to a question as to what he saw, his answer was: "Saw traffic coming underneath continually." "Cars — cars don't bother, they are low.
"Q. You saw trucks too, didn't you? A. Yes, I saw them stop when they came up and seen the signs and look out the windowto see if they were clearing the cable and they would motion them through if they would clear the cable." (Emphasis added.)
"I can't say whether the guards were there."
Speaking of the cable on which he was working, plaintiff testified: "When it would be sagging a little too much, I would tie up. There was a little more weight on that cable than on the others, so kept mine tied up into the structural steel."
I believe that this special verdict, that plaintiff was negligent but that his negligence was not a proximate cause of his injuries, is manifestly against the weight of the evidence. It is my considered judgment that the proximate cause of this accident was the combined negligence of defendant and plaintiff.
A new trial should be granted. *Page 23