The trial court granted a motion of the defendant for an instructed verdict made at the conclusion of all the evidence. The effect of such a motion is a demurrer to the evidence. The plaintiff, when such motion is made by defendant, is entitled to the benefit of all the evidence in his favor, whether introduced by him or the defendant. He is entitled to all the favorable, fair and reasonable inferences justified by such evidence, and the trial court and this court may not sustain such instructed verdict unless reasonable minds could not differ as to the conclusions to be drawn therefrom.
In differing with the conclusion of the trial judge and the conclusions of my associates, I am conscious of the implications involved in the situation.
At the outset, I think it is proper to endeavor to establish the law as it exists in Ohio, particularly in view of the decisions of Bosjnak v. Superior Sheet Steel Co., 145 Ohio St. 538, 62 N.E.2d 305, and Wellman v. East Ohio Gas Co.,160 Ohio St. 103, 113 N.E.2d 629.
The earlier case would be almost a "blue bottle" case as far as the instant case is concerned, except for the fact that in the Bosjnak case there was no evidence that the contractor had been notified of the danger inherent in the charged wires. In this case, the contractor was so notified. *Page 200
The Wellman case presents an entirely different situation than that involved here. In that case, the contractor was employed to work upon the very agency which caused injury.
If the contractor in the instant case had been employed to do something in connection with the poles or wires, such as moving the poles or adjusting contact with the charged wires, then theWellman case would have applied. A reading of the syllabus and opinion in the Wellman case makes it clear that the rule of responsibility is changed where the employee-invitee is working upon the very instrumentality which causes his injury, but the owner is not relieved from responsibility where the destructive agency is not connected with the specific work allocated to the contractor. The employee-invitee must be presumed to assume all the risks incident to such specific employment when that employment involves dealing with the agency causing the injury.
It is clear, therefore, that, except under such circumstances, the owner owes a nondelegable duty to the invitee-employee of the contractor to warn him of latent dangers incident to his employment on the premises of the owner.
Now it appears from the evidence that the plaintiff had been working in and about the extensive premises of the owner for some time, and that during a portion of this period, the bare electric wires were not charged with electricity. The injury to plaintiff occurred on April 2, 1952. On the previous December 27, 1951, the contractor was notified by the owner that the wires had been energized. The evidence is that the contractor notified, by letter, the master mechanic in charge of the hoisting equipment of the contractor, a mechanical engineer, an electrical engineer, and a sub-contractor of the contractor. There is no evidence that the plaintiff had the slightest knowledge that the wires were energized with some 66,000 volts of electricity. In the majority opinion it is stated that "it is well night incredible" that the plaintiff did not observe the poles and wires. It certainly seems incredible that the plaintiff would take hold of a steel beam, attached by steel wires to the boom of a crane, moving toward bare wires which he knew carried 66,000 volts of electricity.
It appears from the evidence that the plaintiff on the *Page 201 morning of the day on which his injury was incurred, reported at a place somewhat distant from the scene of activity where the beams were to be unloaded from the gondola car by the contractor, that before repairing to such location, he was sent off to obtain some "spreaders" and spent some considerable time in securing them, that finally when he reported with them to the scene of activity, the work of swinging the beams from the car had progressed, so that a beam was already to be swung out of the car, that he was told immediately to assist in swinging the beam to its place on the ground, and that he had little, if any, opportunity to observe the elements of danger present, even if he had known that the wires were energized. In any event, whether he was guilty of contributory negligence or had assumed the risk would be a question for the trier of fact.
Now it is also apparent, giving the plaintiff the benefit of disputed evidence, that the contractor, over the objection of his responsibile employees, had been definitely instructed by authorized agents of the owner to unload the beams in this area of latent danger. Here, again, is a situation presenting an issuable fact as to whether the owner did not assume full responsibility for the consequences of such instruction.
Again, it is in evidence that signs were posted some distance from the area of activity calling attention to the energized wires. Whether such signs were so placed as to constitute possible notice to the plaintiff is an issuable fact.
It is stated that the evidence shows that complete control over the area in which the plaintiff was acting had been given the contractor. Examination of the record will show that this also was an issuable fact, or that it constitutes an interpretation of evidence most unfavorable to the plaintiff.
To sustain the conclusion of the trial court, it is necessary to find as a matter of law that the defendant-owner had discharged its full duty to the plaintiff-invitee-employee of the contractor when the owner notified such contractor that the wires were energized, even though such information never reached the plaintiff-employee-invitee, or that the posted notices were, as a matter of law, sufficient notice to such employee, or that full and absolute control of the premises involved had been given the contractor. Even if such conclusions did not involve *Page 202 issuable facts, no authoritative Ohio case sustains the legal conclusions involved.
It is asserted also that the difficulty in giving notice to all the invitee-employees of an independent contractor should release the owner from such duty. It has never been held that difficulty in performance will relieve one responsible from the performance of a lawful duty. Certainly, a different situation would be involved in the instant case had the poles in the immediate vicinity of the area of the activity carried signs warning of the presence of bare wires carrying a high voltage current of electricity.
Decisions of courts of other states are in conflict upon these questions, although in each case the facts vary. Illustrative of this conflict are the following cases: The case of Valles v. Peoples-Pittsburgh Trust Co., 339 Pa. 33,13 A.2d 19, sustains exclusion of liability of the owner where notice is given the contractor; the case of Le Vonas v. AcmePaper Board Co., 184 Md. 16, 20, 40 A.2d 43, is to the contrary.
To sustain such rule in Ohio, a modification of the unqualified rule stated in the case of Bosjnak v. Superior SheetSteel Co., supra, will be required.
As stated before, the case of Wellman v. East Ohio Gas Co.,supra, by reason of the facts and rule stated, does not constitute such modification. Until such modification of the rule in Bosjnak v. Superior Sheet Steel Co., supra, is announced by the Supreme Court, I consider that issuable facts in the instant case were presented requiring the intervention of the trier of facts. I consider the better rule to be that if the owner sees fit to use the independent contractor as his agent to notify the employee-invitees of latent dangers, and such agent fails in the performance of such duty, the owner may not escape responsibility for failure to perform a nondelegable duty.
I think the judgment should be reversed and the cause remanded to the trial court for new trial. *Page 203