BRYSON v. GALLO, 180 F. 70

WARRINGTON, Circuit Judge (after stating the facts as above). Although there are quite a number of assignments of error; the controversy is reducible to .two issues. One arises upon a claim that the accident was caused by admitted negligence of certain fellow servants of Gallo who were engaged at the derrick in giving orders for lowering and in handling the three steel beams.

The other grows out of the receiving of evidence, and of a portion of the charge of the court below, touching a claim that Bryson failed to furnish appliances necessary to steady the beams as they were lowered and so failed to furnish Gallo a safe place in which to work. Stating these issue's in other language: They concern .the violation of primary duties, first, by Gallo’s fellow servants, and, second, by Gallo’s employer, Bryson.

The admitted negligence is claimed on behalf of Bryson to have grown out of an order given by Schmunk as foreman of the iron workers to Keith as an iron worker under him, to lower at one time the three beams in question instead of one at a time as previously directed by Superintendent Eldridge. One complaint is that the court below erroneously submitted to the jury the question of negligent operation of proper appliances by fellow servants of Gallo. But we think the charge was in favor of Bryson upon this feature.

As illustrative of this, we may refer to the following portion: “Nor does the fact that a person is hurt, or the fact that the plaintiff was hurt, and his injury was due to the fact that somebody who was working there, like Keith or the other associates of his, was negligent — was not exercising ordinary care — make the defendant liable.

The negligence of some fellow workman of the plaintiff, resulting in injury to the plaintiff, would not, in and of itself, or because of that fact alone, make the employer liable.” This was emphasized by a statement shortly following it: “ * * * And so the plaintiff must show by a preponderance of the proof, before he can recover, that it was the defendant’s negligence which was responsible for the falling of the beams.” We may therefore safely pass by the question of fellow service or of liability in that regard, and turn to' a consideration of the important question touching the claim of failure of the master to furnish necessary appliances.

The claim of Gallo is that there was a failure to furnish guide lines called “snub ropes,” to steady the beams in their descent from, the derrick platform to the floor of the basement. The objection of Bryson is that no such failure was alleged in the petition.

Keith was permitted to testify that there was no “guide line or snub line there” for him to use, when attempting to lower the three beams, and defendant’s counsel at the time objected “on the ground that it is not covered by the petition; there is no allegation against us for failure to have such.” It must be conceded that the petition does not in express terms contain such an allegation. It does contain many allegations of specific negligence; and one inquiry is whether any of them separately, or in connection with others, may fairly be regarded as broad enough to justify admission of this evidence.

Among the allegations are the following: “ * * * They (defendants and their superior agents and servants) were careless and negligent in undertaking to lift by means of said derrick at one time three metal beams of such great weight and size, and the plaintiff says that the tools and appliances then and there owned and used by the defendants were inadequate to lift more than one beam at a time.

They were further careless and negligent in this, to wit, that they just prior to attempting to lift said beams had recklessly fastened and secured the same merely by a single loop over and around said beams and near the center thereof, instead of securing and fastening the same by at least two loops near the ends thereof, so as to secure and insure a proper balancing of said beams when the same would be lifted in the air.” Again: “ * * * In failing to apprise him of their purpose then and there to elevate said beams in the air in the manner and under the conditions aforesaid, and in failing to provide for him a safe place in which to work.” These allegations, as well as the others, were traversed in the answer by simple denial.

What is the true scope and meaning of the words “that the tools and appliances then, and there owned and used by the defendants were inadequate to lift more than one beam at a time” ? It was nowhere- alleged that the derrick , or its depending cable, chains, or appliances were broken, by the weight of the beams or otherwise,.

It is within the ordinary and accepted meaning of' the word “inadequate,” as used iii the allegation, that it may signify insufficiency or lack of “appliances.” True the- word is followed by the words “to lift more than one beam at a time”; but these words must bé read in connection with other allegations such as the succeeding language, in which it is' charged that' it was attempted “to lift said beams” by fastening them merely by a single loop near the center instead of fastening them “by at least two loops near the ends thereof so as to secure and insure a proper balancing of said beams when the same would be lifted in the air.” The complaint therefore was not- of inherent weakness in appliances, but rather of an insufficiency of appliances for balancing the beams when it was attempted to lift two or more at one time from the derrick platform and to lower them to the basement.

If this meaning or its equivalent is not applied, it is hard to conceive of any purpose at all in using “inadequate.” Enough appears in the evidence to show that a guide line or snub line was a proper and usual appliance for staying and balancing beams when so carried. - It is not meant to say either that the language quoted or that the language of the petition as a whole is as clear as it should -have been respecting averment of violation of the primary duty of the master. But the present petition was prepared under the Ohio Code of Civil Procedure and was filed in an Ohio court. Under

section 914, Rev. St. U. S. (1 U. S. Comp. St. 1901, p. 684), the practice and pleadings in a case like this are required to conform “as near as may be” to the practice and pleadings, etc., prescribed in the state within which the federal court is held. We may therefore upon such a question as this look to the Civil Code of Ohio to'ascertain how such a pleading should be construed. Glenn v. Sumner, 132 U. S. 152, 156, 10 Sup. Ct. 41, 33 L. Ed. 301; Roberts v. Lewis, 144 U. S. 653, 656, 12 Sup. Ct. 781, 36 L. Ed. 579; Nudd et al. v. Burrows, 91 U. S. 426, 442, 23 L. Ed. 286.

No question arises here like that in Liverpool & L. G. Ins. Co. v. N. & M. Friedman, 133 Fed. (6th Circuit) 713, 716, 66 C. C. A. 543. By

section 5096 of that code it is provided that: “The allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties.” See, also,

section 4948; Clay v. Edgerton, 19 Ohio St. 549, 2 Am. Rep. 422; McCurdy v. Baughman, 43 Ohio St. 78, 1 N. E. 93. Construing the language of the petition liberally “with a view to substantial justice between the parties,” we are not persuaded that the trial court committed error of a prejudicial character in admitting the evidence in question. But we need not rest this conclusion merely upon the language of the petition. It is to be observed that the defendant at no time presented a motion to make the petition definite and certain.

The objection that there was nothing in the petition to suggest that the •claim in dispute would be made, or that evidence would be offered in its support, is not convincing. Defendant did not in the objection as made or elsewhere claim to be taken by surprise, or in any manner do be misled by the introduction of such evidence. On the contrary. he met the claim by testimony and tried the case to its end apparently with as much preparation as if specific issue had been made in that regard by the pleadings. It is earnestly insisted, however, that fatal variance intervened.

Presumably plaintiff would have been allowed to amend his petition, if amendment had been suggested by counsel and deemed necessary by the court. As observed by Judge Severens in Hernan v. American Bridge Co., 167 Fed. (6th Circuit) 930, 936, 93 C. C. A. 330, 336: “The authority vested in the federal courts to amend the process, pleadings, and proceedings in cases brought before them is ample; probably not less so than in any other system of jurisprudence.” Recurring to the Ohio Code of Civil Procedure respecting questions of pleading and amendment, by

section 5294 it is provided: “No variance between the allegation in a pleading, and the proof, shall be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits, and when it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as are just.”

Section 5295 provides: “When the variance is not material, the court may direct the fact to be found according to the -evidence, and may order an immediate amendment, without costs.” It follows that, whether amendment was necessary or not, at most there was not under the facts pointed out a material variance. Railway Co. v. Lavalley, 36 Ohio St. 221, 225; Sibila v. Bahney, 34 Ohio St. 399, 408; Benninger v. Hess, 41 Ohio St. 64, 68; Cincinnati St. Ry. Co. v. Whitcomb, 66 Fed. (C. C. A., 6th Circuit) 915, 14 C. C. A. 183; Derham v. Donohue, 155 Fed. (C. C. A., 8th Circuit) 385, 386, 83 C. C.

A. 657; Washington & Georgetown R. v. Hickey, 166 U. S 521, 531, 532, 17 Sup. Ct. 661, 41 L. Ed. 1101; Baltimore & Potomac R. v. Cumberland, 176 U. S. 232, 238, 20 Sup. Ct. 380, 44 L. Ed. 447. Furthermore, in view of what has been shown, it is not perceivable-why

section 5115 of the Ohio Civil Code is not applicable.

It provides: “The court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed, or affected, by reason of such error or defect.” We therefore conclude that we should consider this case as though admittedly an issue had been distinctly formulated by the pleadings alleging and denying failure of the master to supply the necessary guide lines, or “snub ropes,” as they are called, for use in staying and balancing the beams.

It is not necessary to set out and analyze the evidence introduced upon this subject. It is enough to say that our study of the record satisfies us that there was conflict in the testimony and that the jury was fairly and clearly instructed upon the subject. Said the learned trial judge: “So we have the questions: Did the failure of the mén to attach'these ropes cause’the accident? Was it on account of .the- absence of the ropes that the injury to the plaintiff resulted?

Was there at ■the time available for the use of Keith and his associates rope of sufficient quantity to be used for such snub .line or guide line, or both, according as one or both were necessary under the conditions then existing? Did Keith make a suitable search, or suitable .inquiry for such rope, under all the circumstances? Ought he to have made a further search than he did make? Ought he or his associate, Schmunk, to have inquired of Eldridge, the superintendent? .

Did they do what, under all the circumstances of the situation that surrounded them — the ■ danger, if any, that they might reasonably apprehend from the use of these instru-mentalities in that way to lower these beams — they ought to have done as men of ordinary prudence to satisfy themselves that there was no rope available for use on these beams.?

If they did and found no such rope, and the failure to find it and use it was the cause of the- accident, then the plaintiff is entitled to recover.” The fellow-servant doctrine and the great number of decisions cited in that behalf by the learned counsel for defendant below thus become irrelevant. We believe upon the facts that this case must be ruled by the principles affirmed in the decision of the Supreme Court in Kreigh v. Westinghouse & Co., 214 U. S. 249, 257, 29 Sup. Ct. 619, 622, 53 L. Ed. 984.

No question of contributory negligence is presented; and under the verdict and judgment we must assume that Bry-son failed to discharge his primary duty to furnish sufficient appliances properly to manipulate the beams during their descent to the basement, and that'he failed to provide for Gallo a safe place in which to work as alleged in his petition. This negligence is not affected by the circumstance that those engaged at the derrick and with the beams were also negligent in performing the work. As said by Mr.

Justice Day in the case just cited: “If the negligence of the master in failing to provide and maintain a safe place to work' contributed to the injury received by the plaintiff, the master would be liable, notwithstanding the concurring negligence of those performing the work. Grand Trunk R. R. Co. v. Cummings, 106 U. S. 700 [1 Sup. Ct. 493, 27 L. Ed. 266]; Deserant v. Cerillos Coal Railroad Co., 178 U. S. 409, 420 [20 Sup. Ct. 967, 44 L. Ed. 1127], and cases there cited.” . The assignments of error ■ must be overruled, and the judgment affirmed, with costs. .