dissenting. I regret that I am unable to agree with my colleagues in the matter of the disposition of this case.
Perhaps additional facts may clarify my position. I do not intend to weigh the evidence but rather to rely upon the uncon-*204tradicted evidence of record which may present the law questions in a different light.
The employer, Robert L. Sweigart, contracted with S. J. Rndy & Son to repair cracks in the walls near the tops of certain storage silo bins, about 100 feet high. The tops of the silos, where Sweigart’s job was in progress, were reached by a man-lift elevator moving in a shaft between the walls of two silos.
Sweigart and his employees used this elevator in ascending to their place of work and in carrying gear, rope and other equipment used on the job to a swinging scaffold suspended from the tops of the bins.
Sweigart, the employer, had personally used the elevator repeatedly during a period of about one and one-half weeks prior to relator’s (Reed’s) injury. This elevator is the “device” mentioned in the syllabus of the majority.
Near quitting time, relator was in the elevator with another of Sweigart’s employees taking some rope up to place on the scaffold overnight. While the elevator was moving upwards, someone called relator from below. He moved his head and looked down the side of the open shaft, when his head was caught between the elevator moving upwards and the edge of the shaftway, causing severe injuries.
The stipulation of facts states that:
“The cage [of the elevator] measured 24 inches by 28 inches by 86 inches inside. The cage is open at the front. One side and the back is enclosed to a height of 4 ft. with the other side being enclosed to a height of 6 ft.” Consequently, one side of the elevator was open from approximately the height of a man’s waist upwards.
Bulletin No. 110, adopted and issued by the Industrial Commission, at page 167, Section 812.1, provides that:
“Except at the entrance, the ear shall he enclosed at sides and top. The enclosure at the sides shall be solid or of open work which will reject a one (1) inch diameter ball.” (Emphasis added.)
This is a specific safety requirement under the Constitution and laws of Ohio.
Sweigart, the employer, was thoroughly familiar with the *205structure and condition of the elevator — he had used it and he saw his employees use it and he and an employee rode in it together.
In view of the stipulation of record, Sweigart was thoroughly familiar with the dangerous and hazardous condition within the cage of the elevator which was obvious to anyone entering-the elevator. The majority concedes that the condition of the elevator was violative of a specific safety regulation imposed by law but excuses the employer on the ground that he did not own or maintain the elevator. I cannot agree that this is a sound principle of law. If it is, then an employer, who has borrowed and is using an obviously dangerous device on a contract job upon which an employee is injured, is permitted to escape the obligation of additional compensation by merely saying in substance :
“I don’t own or maintain the dangerous device. I just borrow it and use it on the job and require my employees to use it.”
The ownership of the device is not material in the disposition of this additional-award-of-compensation claim, but the test is the use of it by the employer, knowing its unguarded hazards and dangers to his employees.
It would have been a simple matter for Sweigart to have asked Eudy to board up the sides and back of the cage of the elevator or to have done so himself rather than violate a regulation specifically adopted to prevent injury or death to an employee.
The failure of the Industrial Commission to grant relator additional compensation was an abuse of discretion.
The judgment of the Court of Appeals should be reversed.