This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county.
In the court below the plaintiff, Lydia Lashure, was injured in an excavation on the sidewalk out at Kamm's Corners and Lorain avenue in the city of Cleveland. She brought a suit against the East Ohio Gas Company, who, she claims, made the excavation in the sidewalk. At the trial of the action, upon conclusion of plaintiff's testimony, the defendant gas company made a motion for a directed verdict, which the court granted, and it is to reverse that judgment that error is prosecuted here.
The majority of the court think that this case comes within the case of Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204,140 N.E. 634, and this seems to have been the opinion of the trial judge, and so, after the testimony of the plaintiff was concluded, he directed a verdict on the ground that there was no evidence to go to the jury that the gas company had made this excavation.
I cannot agree with the majority of the court and feel it my duty to give my reasons why I dissent.
It seems to have been the opinion of the court below, basing it upon the Lubric Oil case, supra, *Page 171 that, in order to hold the gas company, there must be an inference upon an inference. I do not agree with that. Let me recite the facts:
Some time prior to the happening of this accident, there was a sidewalk 2 1/2 feet from the curb on Lorain avenue. The building of the plaintiff and perhaps other buildings, likewise, stood 11 feet inside the street line, and there was a concrete sidewalk up toward the curb line some 2 1/2 feet therefrom, and then from the sidewalk to the building there were cinders, I believe. Prior to the happening of the event here involved, the owners of the various stores made a contract with a concrete contractor to fill out the sidewalk to the curb and to carry the sidewalk into the store buildings. I should say that in this 2 1/2 feet of space, just next to the edge of the sidewalk, were the gas shut-offs owned and controlled by the East Ohio Gas Company, which furnished gas to the buildings adjoining, and for some reason the gas shut-off box here in question had been covered over; that the con-to the edge of the sidewalk, were the gas shut-offs were, and so he covered them over with cement four inches thick. The other gas boxes having been discovered, he apparently made suitable arrangements for them, so that when he had finished his job the sidewalk in front of the building where the accident occurred was smooth from the curb to the building, and was in conformity with the remaining sidewalk.
Now, subsequently, a man in working clothes with a crowbar and tools was seen by an employee of the store digging out the concrete 2 1/2 feet from the curb to uncover the gas box and shut-off, and he *Page 172 made there and left in this sidewalk an opening one foot square, with the gas box, which I believe was covered with an iron lid, exactly in the center of this opening, but he did not turn the pipe, or whatever it might be, up to the level of the sidewalk and fill in with concrete, but left this hole there. He was then seen to take the tools and put them on a truck, on which was painted the name of the East Ohio Gas Company, and to drive away. Subsequently the plaintiff, who knew nothing of this situation, but lived a mile away, came along and stepped into this hole, and was injured, as she alleges.
The court, under this evidence, took the case from the jury on the theory as already announced.
Now is there here an inference upon an inference?
Analyzing the Lubric Oil Company case, the court held that they might infer from the word "Lubric" on the truck that the truck belonged to the Lubric Oil Company, but from this fact they would have to further infer that the driver was in the employ of the Lubric Oil Company and that he was acting within the scope of his employment — an inference to be drawn from an inference. But is that the situation in the instant case? Here were three facts all pointing to the same thing, not an inference upon an inference at all. In the first place, there was nobody interested in having this shut-off exposed except the gas company itself, unless the owner was interested in having the gas turned on and did it for that purpose; but the record disproves that proposition, so there is no person in the wide world who would be interested in having this shut-off exposed except the gas company. That supplies the *Page 173 motive. Now here is evidence which says that a man in working clothes, with tools, made this excavation in the sidewalk. After the excavation is made he gets into a truck of the East Ohio Gas Company, which stands close by during the entire process of the making of this hole, and he puts the tools that he used on this truck and drives away. Now with the fact in mind that no one would be interested in uncovering this box except the gas company, and with the other facts that a workman was seen doing this work, and that that workman took the tools that he used and put them on this truck, which had the name of the East Ohio Gas Company painted thereon, it seems to me a complete case is made to go to the jury as to whether or not this work was done by the East Ohio Gas Company or its employee.
Instead of this case being like the Lubric Oil Company case,supra, it is more like the case of Feinberg v. Tabor Ice CreamCo., decided March 23, 1919, by this court, which was refused admittance in the Supreme Court. That case distinguished the case of White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St. 18,102 N.E. 302, 46 L.R.A. (N.S.), 1091, Ann. Cas., 1914C, 1082. In theTabor Ice Cream Company case this court held that there was proof to go to the jury when it was shown that a truck that was used was being driven by an employee of the Tabor Ice Cream Company, and that there was in the truck a receptacle for the carrying of ice cream, the business which the Tabor Ice Cream Company was engaged in. The inference to be drawn in that case was that the driver of the truck was using it in the business of the ice cream company, and this *Page 174 court held, and I say the case was refused admittance to the Supreme Court, that the mere fact that the truck contained receptacles for dealing in the business in which the company was engaged was sufficient evidence to go to the jury that the truck was being operated in the company's business at the time of the accident.
If that was true, and I have no doubt about it, it is much more true in the instant case, as has already been pointed out.
Holding these views, I deem it my duty to dissent from the majority of the court and to express my views in this opinion. I think there was clearly an issue to go to the jury. Whether the jury would have found for the defendant or not is immaterial. There surely was not an inference upon an inference, but separate and succinct facts, all to prove the same proposition and that is: Who other than the East Ohio Gas Company could or would do this work? If the gas company showed that it did not do it, that it was done without its authority, why of course it would be entitled to a verdict, but without any evidence I think the court should have submitted the question to the jury. *Page 175