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Athens Circuit Conrt.

accounting in this form of action for damages that may have been sus tained by negligent operations of the mines upon plaintiff's lands.

Fourth. That which has given the court more trouble than any other question arising in the case, was the construction of the supplemental lease relating to the amount of coal that should have been mined from plaintiff's premises; and whether, in any event, the defendant was bound to mine therefrom more lump tonnage than from adjacent lands upon which it was operating, during the same period of time. By the terms of the original lease, the lessee agreed to mine an average of seventy-five tons of lump coal during each working day of the year; whether mined or not, it was bound to pay seven cents royalty on that amount, with the privilege reserved in the lessee of making up the defi ciency in a succeeding year. The supplemental lease, in that respect, was similar in terms, but one hundred and fifty tons was substituted therein, as the daily average, in lieu of the seventy-five tons provided for in the original. However, the supplemental lease contained a clause to the effect that plaintiff's lands should be given preference by the lessee over other lands that might be mined by lessee through entries or shafts on plaintiff's lands.

In the construction of these leases, shall the lessee be held to have performed its duty thereunder by mining or paying for the stipulated minimum, or is it required, when mining trom adjacent territory, to give preference in tonnage quantity to plaintiff's lands over such adjacent territory? If the court should construe this to mean that an equal or larger amount of tonnage should be taken, under the provision of this lease, from plaintiff's territory than from adjoining lands, then of course account should be taken from July 1, 1898, perhaps up to the date of decree, for all such tonnage failed to be mined from plaintiff's land, equivalent to that taken out of such lands adjacent.

The chief purpose of the supplemental lease was to provide lessee with the use of plaintiff's premises, shaft and underground entries, in order to reach coal lands adjacent thereto for mining purposes. Whenever lessee relinquished this right, the supplemental lease became void by its terms, and the original lease again became operative in all its terms. The consideration for the supplemental lease and for the right of using plaintiff's lands to transport coal mined from adjacent premises, was that, during the enjoyment of such use, the lessee agreed to pay one cent per ton of lump coal removed through her lands from such adjoining premises, and should also mine on a daily average of one hundred and fifty tons of lump coal each year, or pay seven cents per ton royalty on that amount, whether mined or unmined. The original lease remains intact, except as modified by the supplemental.

We are unable to give the word "preference," contained in the supplemental lease, the force and meaning claimed for it by counsel for plaintiff. The term is so vague and so irreconcilable with other definite express terms of the lease, that to give it the force claimed it would render inoperative other unambiguous terms. To hold that lessee was bound by the word "preference," to mine more from plaintiff's lands than from other adjacent lands, would have the effect of reading out of the leases, various clauses showing an apparent otherwise intention. The supplemental lease definitely fixes the amount that lessee shall mine on the plaintiff's lands, and provides a fixed amount of payment upon failure to do so. The same instrument fails to specify what amount must be taken from other lands-fails to specify how little or how much lessee

Allison v. Coal Co.

must mine. It merely stipulates that lessee shall pay one cent per ton on all coal mined and hauled from adjoining lands. On the other hand, it is expressly definite as to what it shall do upon the lands of Dorcas Allison. In the supplemental lease, also, is a clause providing that the plaintiff's lands should be mined by lessee, "To the fullest extent that said company can mine the same at a reasonable profit to itself and find a market there for at profitable price." This clause, as well as the minimum royalty clause, is wholly inconsistent with the contention claimed that more coal must be mined from plaintiff's lands than from adjacent premises.

It seems to me that the parties to the lease have stipulated therein for an amount in the nature of liquidated damages in this regard. For coal taken from other lands, one cent per ton was to be paid for the use of plaintiff's shaft entries, etc.—for failure to mine one hundred and fifty tons each working day from plaintiff's lands, lessee was to pay a stipulated amount monthly.

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Now what definite meaning can this court give to the clause, 'plaintiff's lands shall be given preference by said company over other lands that may be reached and mined by said company?" What preference? How much preference? Preference as to time or amount? The lessee has still a term of more than twenty years in which to mine this coal. Shall the preference be exercised each working day, or would it be sufficient to equalize tonnage monthly or yearly? Shall preference be given limited in extent to the daily average tonnage of one hundred and fifty tons, or shall it be held to mean that at all times, a larger tonnage must be removed from one than from the other? This court has concluded, and we hold, that this particular clause is so vague, uncertain, and so irreconcilable with other terms of the lease, that we have been unable to give it effect.

As to the relief asked, we find from testimony introduced by plaintiff that she is entitled to an inspection of the lessee's books touching the amount of coal mined from her lands, or hauled through her premises; and also to a decree enjoining the use of houses upon her lands for purposes other than stipulated in the lease. For any damages sustained by her for waste or for the negligent working of mines she has a remedy at law, and the parties have stipulated that lessee shall be liable in damages therefor. The plaintiff's testimony fairly proved the commission of waste, but not to the extent claimed by her. From the testimony a portion of the coal and pillars may still be reclaimed. The plaintiff is entitled in addition to the relief specified, to an accounting as to the amount of royalties due under the leases, irrespective of damage for waste, and to an accounting for any amount that may be due her for transporting coal through her premises from adjacent lands.

Upon the further trial of the case, the questions of ventilation and accounting aforesaid will be the only matters considered.

Lucas Circuit Court.

NEGLIGENCE.

[Lucas (6th) Circuit Court, September Term, 1901.]
Haynes, Hull and Parker, JJ.

BROWN OIL CAN Co. v. OSCAR GReen.

1. PROMISE to Repair DOES NOT EXCuse Negligence.

A promise on the part of an employer to repair a defective machine does not relieve the employe from exercising ordinary care, commensurate with the danger, in the operation of that machine.

2. CONTRIBUtoky Negligence DefEATING RECOVERY.

A man thirty-nine years old, experienced in the use of machinery, who continued to operate a tin-press after knowledge of its defective condition and promise on the part of his employer to repair, using his fingers to remove the pressed tin when he might, if he elected to operate the defective machine, have used some other and safer means for doing that work, was guilty of negligence and cannot recover for resulting injuries.

HEARD ON Error.

Doyle & Lewis and C. A. Seiders, for plaintiff in error, cited.

Krause v. Morgan, 53 Ohio St., 26, 42 [40 N. E. Rep. 886]; Coal Co. v. Estivenard, 53 Ohio St., 43, 44 [N. E. Rep. 725]; Hess v. Railroad Co., 58 Ohio St., 167, 169 [50 N. E. Rep. 354]. Distinguished, Manufacturing Co. v. Morrisey, 40 Ohio St., [48 Am. Rep. 669].

Hurd, Brumback & Thatcher, for defendant in error.

HULL, J.

This action was brought below by the defendant in error to recover damages for personal injuries which he claims he sustained on account of the negligence of the plaintiff in error. The defendant in error recovered a verdict for $750, upon which judgment was entered by the court of common pleas, and it is to reverse this judgment that this proceeding in error is brought.

The defendant in error, Green, was in the employ of the plaintiff in error, The Brown Oil Can Company, which operated a shop or a manufactory in the city of Toledo. Green was employed in the operation of a machine which may be called a press, that was used in pressing tin into shape in the manufacture of dust-pan backs. His claim was that this machine was defective, and known to be defective by the Oil Can Company, and that he discovered that it was defective, and notified the superintendent of the company; that the superintendent promised to repair it, and relying upon that promise, he, Greene, continued in the employ of the company, and continued to operate the machine until he was injured, on February 13, 1900. The negligence of the company, he claims, consisted in permitting this machine to become and remain cut of repair. He excuses himself for operating the machine on the ground that he had been promised that it would be repaired. The claim of the company is, first, that the machine was not defective; second, that if it was defective, that Green's injuries were directly due to his own negligence in the manner in which he was operating the machine.

The chief question here, the only question of any moment, is whether the verdict of the jury was sustained by sufficient evidence, or whether it was contrary to the weight of evidence, upon the question of

Oil Can Co. v. Green.

Green's contributory negligence. I should say however, that the question as to whether the machine was defective is also one upon which the evidence was conflicting. The plaintiff in error claims that the evidence shows that the machine was not in any manner detective; the defendant in error claims that it was defective in that it had become "gummed up," as it was called, that the oil had become thick and sticky, and the operation of a spring in the machine was thereby interfered with, so that the machine did not work properly; and in that respect the machine was defective, to the knowledge of the defendant below.

The press was a machine that consisted of a lower die with a deep wide groove in it, and an upper die or plunger, as it is sometimes called, which, by the operation of the machine, was made to work up and down in the groove of the lower die. The machine was run by the power in the factory, which was communicated to it by a belt on a large revolving wheel. The machine was thrown into gear so that the upper die or plunger would work up and down by placing the foot upon a treadle, and thrown out of gear by taking the foot off the treadle. A square piece of tin was placed on the lower die, and the upper die came down and pressed it into the groove and formed it into the shape necessary for the back of the dust-pan.

Green was operating this machine and making dust-pan backs when he was hurt. He was about to remove with his thumb and first and second fingers of his left hand dust-pan back that had been pressed in the groove, when the shaft came down and cut off or crushed the ends of those two fingers.

Green's claim is that, on account of the defective condition of the machine, when his foot was taken off the treadle the machine would not be immediately thrown out of gear, either on account of the gummy or sticky condition of the spring, or for some other reason, so that the shaft worked up and down sometimes once, and sometimes twice, and sometimes three times, after his foot was taken off the treadle; whereas, the taking of the foot off the treadle ought immediately to stop the operation of the machine. On this occasion, the piece of tin having been pressed, he claims he took his foot off the treadle, put his fingers on the tin to remove it from the groove, and without his foot being on the treadle, the shaft again came down, and he was injured as stated.

Of course Green knew that if this shaft came down on his fingers it would injure them. He knew that the machine, for some reason, was out of order. As he himself testifies, it had been out of order for some days, and in fact had been out of order as much as a month before; but his claim is that he had been promised that the machine would be repaired, and that he relied upon that promise, and continued to work and operate it. He claims that he was working and operating it at the time he was hurt in the manner in which he had been instructed to operate it when he was employed by the company, to-wit: by taking the pressed tin out of the groove with his fingers, and with no other instrument; and that therefore he was in the exercise of ordinary care at the time he sustained this injury. On the other hand, it is claimed by the plaintiff in error that Green assumed this risk, whatever there was of it, with full knowledge of the condition of the machine, and further that he was guilty of contributory negligence so as to preclude his recovery.

To determine whether Green was guilty of contributory negligence, we must look briefly at the facts and circumstances of the case; who

Lucas Circuit Court.

Green was, what his experience was, and what his knowledge of machinery was, should be considered along with other facts; and his conduct upon the occasion in question must be considered in the light of the knowledge that he had at that time of the condition of the machine, and in the light of the promise which he claims had been made to him that the machine would be repaired. Green was a somewhat experienced man with machinery. He had worked in a sawmill and shops of various kinds before he entered the employ of the Brown Oil Can Company, and he had been in their employ about a year before he was injured. He had worked with this kind of a press, and perhaps with this particular press, about six months, and had worked for some weeks at least on this particular kind of work, before he was injured. He was a man about thirty-nine years of age. So that he was an experienced workman. He had full knowledge of the danger, if there was any, in the employment in which he was engaged. He claims that when he entered the employ of the company he was instructed by the foreman, Mr. Brown, to operate the machine as he was operating it at the time he was injured, by taking the pressed tin out of the groove with his fingers; and that he never had any instructions to use any instrument. This Mr. Brown denies. According to the plaintiff's testimony, it seems that this machine began to show signs of being out of repair about a month before Green was hurt, and he noticed then that it would "repeat," as he calls it. After he took his foot off the treadle the shaft would go up and down two or three times without his foot being put back upon it. And I think he called the attention of the foreman to it at that time. But he claims further that during the week immediately preceding his injury the machine was acting badly, and repeated, and on the Saturday preceding he called the foreman's attention to it, and the forman told him it was "gummy" and sticky, and that perhaps, if he would warm it up by running it rapidly, that the machine would work all right; and the foreman promised to look after it and see that it was fixed. Green then went back to work and operated the machine, and returned Monday morning. Monday morning the machine again worked badly, and he ran it rapidly for awhile, and warmed it up as he had been told. But the machine continued to repeat after that and did repeat several times during that day, the shaft coming down when his foot was not on the treadle. He came back to work again Tuesday morning, and as soon as he began to work the machine commenced to repeat. He went to work at half-past six and was injured at eight. According to Green's testimony he spent nearly all of the time until within about half an hour of the time he was injured in undertaking to remedy this difficulty in the machine, warming it up, as he says. His experience on Monday, the day before, had shown him although the machine was "warmed up," this did not remedy the defect, and that it was still liable to repeat, and the punch liable to come down in the groove without his foot being placed upon the treadle.

Of course Green knew that it was dangerous to put his fingers where this die might come down upon them, if the machine was out of repair, and the die liable to come down, although his foot was not on the treadle. He says in his testimony on page 65 of the bill of exceptions in answer to questions:

"Q. You knew it to be a very dangerous thing to put your hands in there that way, didn't you? A. I did, sir.

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