I concur in paragraph one of the syllabus referring specifically to the conversation which took place among counsel of one of the parties, one of the witnesses and several of the jurors.
I respectfully dissent from paragraphs two and three of the syllabus for the following reasons:
The answer filed by the defendant specifically pleaded as a third defense "assumption of risk," and from a reading of the record I find that there is ample evidence that the decedent, together with his fellow workers, was warned by his immediate supervisor not to enter the raw materials building and to remain in the mill furnace building where arrangements had been previously made to shut down the No. 2 crane. The record further shows that the decedent, Charles O. Baker, in attempting to work with another fellow employee and while standing on the rail over which the No. 1 crane traveled, was in violation of an express directive and thereby assumed the risk of any and all harm which might befall him in so doing.
I further concur that prejudicial error resulted as to the submission by the trial court of defendant's Interrogatories Nos. 1 and 6 as set forth in Judge Rutherford's concurring opinion. *Page 51
THELMA V. BAKER, AS THE : ADMINISTRATRIX OF THE ESTATE OF CHARLES O. BAKER, DECEASED : 517 WATER STREET PHILO, OHIO : CASE No. 43886 PLAINTIFF : v. : PETITION OHIO FERRO-ALLOYS CORPORATION, : A CORPORATION, CANTON, OHIO : DEFENDANT :
1. The plaintiff, THELMA V. BAKER, Administratrix of the Estate of CHARLES O. BAKER, Deceased, says that by order of the Probate Court of Muskingum County, Ohio, she was and is the duly appointed, qualified and acting administratrix of the Estate of CHARLES O. BAKER, Deceased, late of Muskingum County, Ohio, who died on the 2nd day of November, 1962, and left surviving him, THELMA V. BAKER, surviving Spouse, CHARLES BAKER, JR., son and BONNIE JESSE, Daughter, who are his only next of kin and sole heirs at law, who have suffered pecuniary loss by reason of the death of the decedent and for whose benefit this action is commenced.
2. Plaintiff says that the defendant is a corporation organized under the laws of the state of Ohio.
3. Plaintiff further says that on or about the 2nd day *Page 52 of November, 1962, while the said CHARLES O. BAKER was engaged in the business of iron working and performing services for the Towne Construction Company, an independent contractor, at the Philo, Ohio, plant of the defendant herein, one GEORGE RAYMOND WATSON, an agent and/or employee of the defendant OHIO FERRO-ALLOYS CORPORATION, while acting within the scope and course of his employment with and for said defendant, did negligently and carelessly operate a crane whereby the said crane did strike the said CHARLES O. BAKER, causing serious bodily injuries and death by reason thereof.
4. Plaintiff further states that the defendant, by and through its agents and/or employees, failed and neglected to notify or to inform its agents and/or employees that the said decedent would be working in the area of said crane, failed and neglected to shut down said crane full well knowing that the decedent would be working in said area, failed and neglected to sound a warning horn or otherwise notifying the decedent of the approach of said crane, failed and neglected to maintain a lookout for the decedent in said area for the safety of the decedent, failed and neglected to maintain the premises in a reasonably safe condition for the decedent, failed and neglected to warn the decedent that said crane would be operating and of its danger and failed and neglected to exercise ordinary care to keep the premises as free from danger to the decedent, while there employed, as the nature of the employment and the circumstances existing at the time would reasonably permit.
5. That as a direct and proximate result thereof, the said CHARLES O. BAKER sustained an eviscerated crushed pelvis, compound fracture of the right arm and leg, hemorrhage and shock and as a result thereof, his death was caused on the 2nd day of November, 1962, whereby the next of kin and heirs at law were damaged in the sum of Fifty Thousand Dollars ($50,000.00).
WHEREFORE, plaintiff prays for judgment against the defendant in the sum of Fifty Thousand Dollars ($50,000.00), with interest and costs. *Page 53
THELMA V. BAKER, AS THE : ADMINISTRATRIX OF THE ESTATE OF CHARLES O. BAKER, DECEASED : CASE No. 43886 PLAINTIFF : v. : ANSWER OHIO FERRO-ALLOYS CORPORATION, : DEFENDANT :
FIRST DEFENSE:
Now comes the defendant, and for answer to plaintiff's petition admits:
(1) The allegations of paragraph one of plaintiff's petition;
(2) The allegations of paragraph two of plaintiff's petition;
(3) That on or about the 2nd day of November, 1962, Charles O. Baker was engaged in the business of iron, working and performing services for the Towne Construction Company, an independent contractor, at the Philo, Ohio, plant of the defendant.
(4) That on said date and at said place an accident occurred whereby said Charles O. Baker suffered injuries which directly and proximately resulted in his death.
Further answering defendant denies each and every allegation of plaintiff's petition except those expressly admitted herein.
SECOND DEFENSE:
For its second defense to plaintiff's petition, defendant realleges and incorporates herein as though fully rewritten all of the allegations of its first defense, and further states that in the general area where the accident in question *Page 54 occurred there was located two large over-head cranes. The crane denoted as "No. 1 Crane" is in the Raw Material Building, and the crane denoted as "No. 2 Crane" is in the Silicon Mill Furnace Building. These buildings and these cranes are immediately adjacent and contiguous to each other.
That on the morning of November 2, 1962, and for several weeks prior thereto, the said Charles O. Baker, together with other employees of the Towne Construction Company, had been assigned by their immediate supervisor, also an employee of the Towne Construction Company, to the job of installing a furnace and "heat shields" in the Silicon Mill Furnace Building.
While installing these "heat shields" on the morning of November 2, 1962, the decedent, Charles O. Baker, together with fellow employees, was working from the crane bridge of the No. 2 Crane inside the Silicon Mill Furnace Building. This crane was "locked out" with power off and an employee of Towne Construction Company occupying said No. 2 Crane as "Safety Man." The No. 1 Crane located in the Raw Material Building was in operation and had been in operation during the morning and prior to the accident in question.
About 9:30 A. M. on the morning in question the decedent, Charles O. Baker stepped from the bridge of the No. 2 Crane over into the Raw Material Building and was attempting to work while on the rail over which the No. 1 Crane traveled. The nature of the work in which he was engaged at the time to wit: the erection of "heat shields" in the Silicon Mill Furnace Building did not require or necessitate his being on the rail in the Raw Material Building. That in so assuming this position he placed himself in a position of peril, and in so doing failed to use ordinary care for his own safety under circumstances then and there existing. This conduct on the part of the decedent, Charles O. Baker, constituted negligence which directly and proximately contributed to the cause of the accident and directly and proximately contributed to his injuries and subsequent death.
THIRD DEFENSE:
For its third defense to plaintiff's petition, defendant *Page 55 realleges and incorporates herein as though fully rewritten all of the allegations of its first and second defenses and further says that the decedent Charles O. Baker in assuming the position taken by him on the rail over which the No. 1 Crane traveled in the Raw Material Building, knew or in the exercise of ordinary care should have known that such a position was a perilous one, and likely to result in injuries to himself, and being thus fully aware of the attended circumstances assumed any and all risks of injury to himself. Defendant further says that on the morning in question, prior to commencing the work undertaken, the decedent, together with his fellow workers, was warned by his immediate supervisor against going into the Raw Material Building, and to remain in the Silicon Mill Furnace Building where arrangements had been previously made to shut down the No. 2 Crane. That the decedent, Charles O. Baker, in going over into the Raw Material Building and attempting to work while standing on the rail over which the No. 1 Crane traveled was in violation of an express directive and thereby assumed the risk of any and all harm which might befall him in so doing.
WHEREFORE, defendant prays plaintiff's petition be dismissed at her costs.
THELMA V. BAKER, AS THE : ADMINISTRATRIX OF THE ESTATE OF CHARLES O. BAKER, DECEASED : CASE No. 43886 PLAINTIFF : v. : REPLY OHIO FERRO-ALLOYS CORPORATION, : DEFENDANT :
Now comes the plaintiff, Thelma V. Baker, Administratrix of the Estate of Charles O. Baker, Deceased, and *Page 56 for her reply to the defendant's answer, denies all the allegations thereof which are not admissions of or consistent with the allegations of plaintiff's petition.
WHEREFORE, plaintiff again renews her prayer and demand as contained in the petition.