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Oil Can Co. v. Green.

"Q. And yet you want the jury to understand that, knowing it to be dangerous to put your fingers in there, you didn't know enough to shove them out partially with the other tin, so you wouldn't have to put your fingers in? A. I wouldn't say any other way; that is the way I supposed it was done."

And again on this same page:

"Q. Did you ever think of the dangers of it when you were on your way home or coming back, when you were away from the machine? A. Yes, sir. I knew there was danger there."

But he says that he had been promised that the machine would be repaired, and he says that he had been instructed by the foreman that this was the proper way to operate the machine, and that he was complying with these instructions. The evidence shows that the tin could be removed with some instrument aside from the fingers, and that these machines were operated by moving out a little the piece of tin that had been pressed, with the flat piece of tin. Just before the flat piece was put in its place on the lower die the operator could shove out the grooved piece of tin with the flat piece far enough so that it could be taken out without any danger. And the evidence shows that the machine was operated that way after the injury. As to whether or not that was done before the injury, the evidence is conflicting. The foreman testifies that he told the plaintiff before the accident that he would not be injured if he took the flat piece of tin and used it to shove out the grooved piece, the flat piece of tin being put in with the right hand, and the grooved piece being taken out with the left.

It is settled in this state by Manufacturing Co. v. Morrissey, 40 Ohio St. 148 [48 Am. Dec. 669], that where an employe has been promised that a defective machine would be repaired, and continues to operate the machine after such promise for a reasonable length of time, relying upon such promise, that the fact of his continuing the operation of the machine is not in itself conclusive evidence of negligence, but it is a question to be submitted to the jury. The court say in the second paragraph of the syllabus:

"Held: That the workman's knowledge of the defects in the machine was not, under the circumstances and as matter of law, conclusive of contributory negligence on his part; but it was a fact in the case to be taken into consideration by the jury, with all the other facts and circumstances, in determining the question, whether the workman's own negligence contributed to the accident by which he was injured.". The court say in the first paragraph of the opinion, on page 150: 'There is no evidence that there was any carelessness on the part of Morrissey, the defendant in error, in his mode of operating the machine through whose defects he was injured. On the morning of his injury-from the time of his commencing work up to and at the time he was injured-he ran the machire much slower than usual, on account of its bad condition, and in order to avoid being hurt. The contributory negligence imputed to him, consisted in his knowing that the part called the 'jointer' was out of repair, and could not be safely used, and in thereafter remaining in the service of the company and continuing to operate that portion of the machine."

The evidence in the case showed that a short time before he was hurt Morrissey had called the attention of the foreman or superintendent to the defect, and half an hour before had been told to go on with his work and it would be fixed

33 O. C. D. Voi. 12

Lucas Circuit Court.

Although a promise to repair may have been made to Green, as he claims on Saturday preceding the Tuesday, on which he was hurt, if it should be found that that was not an unreasonable length of time (which was a question left to the jury), still there remains in the case the question whether in the manner of the operation of the machine at the time in its defective condition, Green himself was exercising ordinary care.

A promise on the part of the employer to repair a defective machine known by the employer and employe to be defective, will not relieve the employe from exercising ordinary care in the operation of that machine, and he is required to exercise such care as is commensurate with the danger of operating the machine. He is not permitted, because he has been promised that the machine will be repaired, to negligently and carelessly expose himself to danger which he might, by the exercise of ordinary care, avoid. In Manufacturing Co. v. Morrissey, supra, the supreme court say that there was no evidence that Morrissey was guilty of any negligence himself in the mode of operating the machine; and the evidence as set forth shows clearly that he was not. The Supreme Court has said in another case that where an employe in obedience to orders goes into a place that may be palpably dangerous, still, if he does this in obedience to orders, it may be a question for a jury to determine whether he has exercised ordinary care or not.

Did Green exercise ordinary care in the mode of operation of this machine? He knew some weeks before the machine was acting in this manner, for some reason. He knew that the shaft was liable to come down when his foot was not on the treadle; he knew that if his fingers were in the groove when the shaft came down they would necessarily be cut off; he knew that on the preceding Saturday this machine had been acting in this manner-that for some reason it was not acting properly, and was repeating; and on the following Monday he found the machine in the same condition, and he undertook to repair it, to remove the difficulty, but without success; and on the morning he was hurt, as he testifies, he spent an hour perhaps, in undertaking to remove this difficulty before he got this machine to work, so that it could be operated, and after he had been working it about half an hour, at about 8 o'clock, he was hurt. It is perfectly plain from this machine, parts of which are before us as a part of the bill of exceptions, and from the testimony of the witness, that the tin in the groove could be shoved out by the piece of tin that the operator was about to put in with his right hand. The groove is perfectly smooth, the edge of the grooved tin is turned over, so that there was a projection against which to place the piece of tin in the right hand and it is clear that it was practicable and safe to operate the machine in this way. Although Green may have been instructed, as he testifies he was when he was put to work at the press to take the tin out with his fingers, that instruction was given to him with reference to a machine that was in repair, if such instruction was given. The foreman denies that he gave him any such instructions, but on the contrary testifies that he told him never to take the tin out with his fingers. He was not instructed to take the tin out with his fingers after the machine got out of repair-after it got into such a condition, as he claims, that the punch was liable at any time to come down on his fingers, without his foot being on the treadle. He knew and must have known with his knowledge of machinery, as a man would have known without any knowledge of machinery or its operation, that this piece of

Oil Can Co. v. Green.

tin could be slid out with the other piece of tin, so that it might be taken hold of without danger. So that, resting the question upon Green's testimony alone, it appears that with his knowledge of the condition of this machine, with the knowledge of what it was liable to do, at any moment and of the injury that it would inflict upon him, with knowledge that he might slide the tin out in some other way and avoid injury, he put his fingers under the punch for the purpose of taking out this piece of tin, and the punch came down without his foot being on the treadle, and he was injured, and it seems to us that upon that statement of facts, viewing Green in the light of his own testimony, laying aside all the other testimony in the case, that he was clearly guilty of contributory negligence, of negligence that directly contributed to his own injury. We are unable to avoid this conclusion from the statement that he makes himself. It is difficult for us to conceive of what would be contributory negligence if a man's placing his hands voluntarily in such a position of peril as this was would not be. He was not in the position of a man who must continue to operate the machine at his peril or lose his employment. He could have operated the machine without putting his fingers under the plunger.

He was not in the position of a man who had been ordered to do something that was dangerous and so obliged to encounter a peril in obeying the order. He was not in the position of Katie Reagan, in Breckenridge Co. v. Reagan, 12 Circ. Dec. 50, (22 R. 71). She was operating a machine when the plunger tripped. She was a girl only fifteen years of age, and had never worked in a factory before, and had only worked in this one two or three days. She testified that she had been given very little instruction. The machine got out of order, and she testified that within half an hour of her injury she had been told to continue her work and the foreman promised to repair the machine. She was undertaking to remove some pieces of tin with her fingers, when the plunger came down, and she was injured. This case, as we view it, is very different in its facts and circumstances from Breckenridge Co. v. Reagan, supra.

We do not base our judgment upon any conflict of evidence, o because the testimony offered by the defendant below is more reasonabl than that offered by the plaintiff below, but rest it upon the testimony of the plaintiff himself, and from that we conclude that he was guilty of contributory negligence, and that therefore the verdict was against the weight of the evidence, and that the motion for a new trial should have been granted, and that there was error in overruling it.

We have examined the charge of the court, but find no error in it. The case was properly submitted to the jury, and had the jury followed the instructions of the court as given, the verdict would have been for defendant below.

For these reasons the judgment of the court of common pleas will be reversed.

1

Columbiana Circuit Court.

ASSESSMENTS.

[Columbiana (7th) Circuit Court, January Term, 1899.]
Frazier, Burrows and Marvin, JJ.

(Judge Marvin of the Eighth Circuit taking the place of Judge Laubie.)
*SALEM (CITY) ET AL. V. LAURA MUlford.

SECTIONS 2270 AND 2284, REV. STAT.-EXCESSIVE ASSESSMENTS.

Section 2270, Rev. Stat., prescribing that the maximum of assessments for municipal improvements shall not exceed twenty-five per cent of the property assessed, and Sec. 2284, Rev. Stat., determ ning what the cost of improvement shall include, where bonds are issued in anticipation of the collection of assessments, etc., apply in cases where assessments for street improvements are payable in installments, and bonds are issued therefor and interest thereon is added to the deferred installments so as to increase the assessment to more than twenty-five per cent. of the appraised value of the property. Therefore, so much of the assessment as is in excess of twentyfive per cent., is illegal and the collection thereof will be enjoined.

HEARD ON ERROR.

FRAZIER, J.

This is a petition in error to the court of common pleas.

The original action was brought by the defendant in error to enjoin the collection of an assessment for improving Garfield avenue in the city of Salem.

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The case called for a construction of Secs. 2270 and 2284, Rev. Stat. The case was treated by Judge Smith of the Court of Common Pleas in an exhaustive opinion, and we are so well satisfied with his reasoning that I shall merely state our conclusions.

It is admitted that the restriction in Sec. 2270, Rev. Stat., to twenty-five per cent. of the value of the property as assessed for taxation, applies in this case. It also appears that the rate per foot front of assessment will exceed twenty-five per cent. of Mrs. Mulford's property as appraised for taxation. Bonds were issued to pay for the improvement covering the period of ten years. An opportunity was given before the issuing of the bonds to pay the assessments by any person who desired, and thus save the payment of interest on the bonds. It is averred in the petition that no one availed himself of this opportunity. When the first installment or one-tenth became due, Mrs. Mulford tendered one-tenth of the value of her property as appraised for taxation. The city refused to receive it in discharge of her liability unless she would pay the interest on it. The counsel for the city argues that as she might have paid the twenty-five per cent. in one sum before the bonds were issued, and did not, she should pay interest to repay the amount the city must pay upon such bonds, or portions of the bonds, which she might have prevented the issue of.

This calls for a construction of Sec. 2284, Rev. Stat., which reads: "The cost of any improvement contemplated in this chapter shall include the purchase money of real estate, or any interest therein, when the same has been acquired by purchase, or the value thereof as found by the jury, where the same has been appropriated, the costs and

Affirmed by Supreme Court without report February 20, 1900.

Salem v. Mulford.

expenses of the proceeding, the damages assessed in favor of any owner of adjoining lands and interest thereon, the costs and expenses of the assessment, the expenses of the preliminary and other surveys, and of printing, publishing the notices and ordinances required, including notice of assessment, and serving notices on property owners, the cost of construction, interest on bonds, where bonds have been issued in anticipation of the collection of assessments and any other necessary expenditure."

The interest on the bonds should have been, and doubtless was, added in as a part of the cost of the improvement. It is as much a part of the cost as any other of the items mentioned in said section. Counsel have cited decisions which hold that interest should be paid after assessments are due.

However that may be, under our statute she can only be required to pay what could have been legally assessed, which is twenty-five per cent. of the appraised value of her lot. We therefore hold that so much of the assessment as is in excess of said sum whether the same is added for interest on bonds or otherwise, is illegal and its collection is properly enjoined.

The judgment of the court of common pleas will be affirmed.

OIL WELL-NUISANCE.

[Hancock Circuit Court, June Term, 1901.]

Day, Norris and Mooney, JJ.

MARY CLINE V. JAMES W. KIRKBRIDE.

OIL WELL ON LOT ADJOINING Dwelling a NUISANCE-INJUNCTION.

The drilling and operating of an oil well on a city lot, in close proximity to a dwelling house on the adjoining lot, is dangerous and annoying, practically destroying the use of the adjoining property for residence purposes, so long as the well is operated; and where it appears that such injury will be continuous, and an action at law for damages will not afford a complete and adequate remedy, a perpetual injunction against such use of the property will be granted at the suit of the adjoining owner.

APPEAL.

Wm. F. Duncan, for plaintiff in error:

The ordinance of the city of Findlay prohibiting the drilling of oil or gas wells within 200 feet of any dwelling house without having first obtained the consent of the owners thereof in writing is not authorized by statute and unconstitutional, and the same was never passed as required by Sec. 1694, Rev. Stat. (1.) An attempt at suspension of the rules required by this section for the reading of the ordinance on three different days, was made, and the motion providing for the same, provided: "That the statutory rules be suspended to enable the ordinance to pass to a second and third reading and be placed upon its final passage," which motion was carried, but the record of the proceedings of the council shows that the ordinance was only read once before the motion was made, and once afterwards, and then placed upon its final passage and adopted. While it has been held that a motion to suspend

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