OPINION
By KOVACHY, J:
Henry J. Harris filed this action in the Court of Common Pleas of Cuyahoga County for injuries incurred while employed as a member of a wreck train crew of the Pennsylvania Railroad Company on tracks of the Nickel Plate Railroad. His action is based on the Federal Employers’ Liability Act, 45 U. S. C. A., Section 51-59, and amendments thereto. A jury rendered a general verdict in his favor for $25,000 on which judgment was entered. Motions by defendant for 1) an order vacating and setting aside the verdict of the jury and for an order for judgment notwithstanding the verdict of the jury, 2) judgment on findings of facts, and 3) new trial, were overruled by the trial court. Defendant appeals these rulings to this court on questions of law. The injuries are not in dispute.
Defendant’s assignment of error No. 1 is that: “The trial court erred by its failure to grant final judgment for the defendant by reason of the fact that the verdict of the jury was inconsistent with the finding of fact timely submitted by the defendant and answered by the jury.”
Pursuant to §2315.16 R. C., the jury returned findings on particular questions of fact as requested by the defendant. They found that the defendant was negligent “in that the tie of the track he was required to walk was elevated a substantial distance above the ground level and was covered with grease or oil, thereby affording an unstable footing.” This finding of fact was an exact adoption by the jury of specification No. 3 of the plaintiff’s petition.
To test the correctness or incorrectness of the ruling of the court on the motion here involved, we are required to consider the evidence in the record in the most favorable light to the plaintiff.
In seeking to have the court sustain his first assignment of error, the defendant contends that there was “absolutely no evidence concerning the presence of oil or grease on the cross-tie where plaintiff claims he was injured,” and that as a consequence, the verdict of the jury was inconsistent with their finding of fact and requires a reversal. We do not agree with this contention.
In Klever v. Reid Brothers Express, Inc., 151 Oh St 467, 86 N. E. 2d 608, the Supreme Court held:
“1. It is the duty of a court to harmonize, if possible, a special finding of a jury with its general verdict.”
Also in Elio v. Akron Transportation Co., 147 Oh St 363, 370, 71 N. E. 2d, 707, 711, the court said:
“Nicety in the use of terms is not required of the jury in answering interrogatories so long as the court is able to gather the intent of the jury from its answer.”
“* * * Such answer should be liberally construed with a view to ascertaining the jury’s reason for its verdict.” (Emphasis ours.)
In Lavender, Adm. v. Kurn, 327 U. S. 645, the United States Supreme Court held:
“4. Only when there is a complete absence of probative facts to support the conclusion reached does reversible error appear.” (Emphasis ours.)
Headnotes 3 and 4 in Beattie v. Elgin, Joliet and Eastern Ry. Co., 217 F. 2d 863, U. S. Court of Appeals, Seventh Circuit, read:
“Standard of care required of employer in furnishing employee safe place to work must be commensurate with dangers of the business and duty to provide safe place becomes more imperative as risk increases.
“Employer’s duty to use reasonable care to furnish employee with safe place to work is a continuing duty from which employer is not relieved by fact that employee’s work at place in question is fleeting or infrequent or fact that employee is sent to premises not belonging to or under control of employer.”
Also in Bailey, Admx v. Central Vermont Ry., Inc., 319 U. S. 350, the court held:
“In this suit under the Federal Employers Liability Act, brought in a state court against a carrier to recover damages for the death of an employee, the evidence was sufficient to go to the jury on the question whether, as alleged in the complaint, the defendant was negligent in failing to use reasonable care to furnish the employee a safe place to work.”
Again in Webb v. Illinois Central Railroad Co., 352 U. S. 512, it was held:
“a) The test of a jury case under the act is whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the employee’s injury.”
The guiding principles of law, in resolving this assignment of error, therefore, are: (1) a liberal construction of the findings of fact with the view of harmonizing them with the general verdict as pronounced by the Ohio Supreme Court; and (2) the slightest evidence of negligence on the part of a defendant in not using reasonable care to furnish employee with a safe place to work, even though employee’s work is fleeting and is on premises not belonging to or under control of employer, is sufficient to sustain a jury verdict in favor of a plaintiff under the Federal Employers’ Liability Act as interpreted by the Circuit Courts of Appeals and the Supreme Court of the United States.
By their findings of fact, the jury in this case, in effect, found that the defendant was negligent in failing to use reasonable care to provide the plaintiff a safe place to work in that he was required to work on a cross-tie that was elevated a substantial distance above the ground level while said tie was covered with grease or oil, affording unstable footing. We find substantial evidence in the record to support these conclusions.
The plaintiff was called to work in the night season to join his wreck train crew in arighting two derailed boxcars. Rain and sleet was falling. The boxcars were to be lifted back on the track by the use of a derrick car. The derrick car, when operating, was supported by four outriggers, two on each end. These out-riggers were stabilized by blocks of wood under them. One boxcar had been arighted, making it necessary to transfer the derrick and out-rigger blocks in position to aright the second boxcar. It was during this operation that the plaintiff was injured. He was required to remove the bottom-most block under one
of the out-riggers. The block was one foot wide, one-half foot thick, four feet long and weighed close to one hundred pounds and had sunk into the mud to a depth of 4 or 5 inches. It lay parallel to the tracks, with the end required to be extracted from the mud, immediately adjacent to and contiguous with a cross-tie which protruded some five inches above the ground. The tie, according to the plaintiff’s testimony, was covered with mud with grease or oil under the mud. Plaintiff’s foreman walked by and upon plaintiff’s asking for help to extract the block, was told: “You are a big, strong
man
— we are busy. Hurry up.” Two coworkers, testifying for the defendant, said that it was difficult for one man to cope with such a situation alone.
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OPINION
By KOVACHY, J:
Henry J. Harris filed this action in the Court of Common Pleas of Cuyahoga County for injuries incurred while employed as a member of a wreck train crew of the Pennsylvania Railroad Company on tracks of the Nickel Plate Railroad. His action is based on the Federal Employers’ Liability Act, 45 U. S. C. A., Section 51-59, and amendments thereto. A jury rendered a general verdict in his favor for $25,000 on which judgment was entered. Motions by defendant for 1) an order vacating and setting aside the verdict of the jury and for an order for judgment notwithstanding the verdict of the jury, 2) judgment on findings of facts, and 3) new trial, were overruled by the trial court. Defendant appeals these rulings to this court on questions of law. The injuries are not in dispute.
Defendant’s assignment of error No. 1 is that: “The trial court erred by its failure to grant final judgment for the defendant by reason of the fact that the verdict of the jury was inconsistent with the finding of fact timely submitted by the defendant and answered by the jury.”
Pursuant to §2315.16 R. C., the jury returned findings on particular questions of fact as requested by the defendant. They found that the defendant was negligent “in that the tie of the track he was required to walk was elevated a substantial distance above the ground level and was covered with grease or oil, thereby affording an unstable footing.” This finding of fact was an exact adoption by the jury of specification No. 3 of the plaintiff’s petition.
To test the correctness or incorrectness of the ruling of the court on the motion here involved, we are required to consider the evidence in the record in the most favorable light to the plaintiff.
In seeking to have the court sustain his first assignment of error, the defendant contends that there was “absolutely no evidence concerning the presence of oil or grease on the cross-tie where plaintiff claims he was injured,” and that as a consequence, the verdict of the jury was inconsistent with their finding of fact and requires a reversal. We do not agree with this contention.
In Klever v. Reid Brothers Express, Inc., 151 Oh St 467, 86 N. E. 2d 608, the Supreme Court held:
“1. It is the duty of a court to harmonize, if possible, a special finding of a jury with its general verdict.”
Also in Elio v. Akron Transportation Co., 147 Oh St 363, 370, 71 N. E. 2d, 707, 711, the court said:
“Nicety in the use of terms is not required of the jury in answering interrogatories so long as the court is able to gather the intent of the jury from its answer.”
“* * * Such answer should be liberally construed with a view to ascertaining the jury’s reason for its verdict.” (Emphasis ours.)
In Lavender, Adm. v. Kurn, 327 U. S. 645, the United States Supreme Court held:
“4. Only when there is a complete absence of probative facts to support the conclusion reached does reversible error appear.” (Emphasis ours.)
Headnotes 3 and 4 in Beattie v. Elgin, Joliet and Eastern Ry. Co., 217 F. 2d 863, U. S. Court of Appeals, Seventh Circuit, read:
“Standard of care required of employer in furnishing employee safe place to work must be commensurate with dangers of the business and duty to provide safe place becomes more imperative as risk increases.
“Employer’s duty to use reasonable care to furnish employee with safe place to work is a continuing duty from which employer is not relieved by fact that employee’s work at place in question is fleeting or infrequent or fact that employee is sent to premises not belonging to or under control of employer.”
Also in Bailey, Admx v. Central Vermont Ry., Inc., 319 U. S. 350, the court held:
“In this suit under the Federal Employers Liability Act, brought in a state court against a carrier to recover damages for the death of an employee, the evidence was sufficient to go to the jury on the question whether, as alleged in the complaint, the defendant was negligent in failing to use reasonable care to furnish the employee a safe place to work.”
Again in Webb v. Illinois Central Railroad Co., 352 U. S. 512, it was held:
“a) The test of a jury case under the act is whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the employee’s injury.”
The guiding principles of law, in resolving this assignment of error, therefore, are: (1) a liberal construction of the findings of fact with the view of harmonizing them with the general verdict as pronounced by the Ohio Supreme Court; and (2) the slightest evidence of negligence on the part of a defendant in not using reasonable care to furnish employee with a safe place to work, even though employee’s work is fleeting and is on premises not belonging to or under control of employer, is sufficient to sustain a jury verdict in favor of a plaintiff under the Federal Employers’ Liability Act as interpreted by the Circuit Courts of Appeals and the Supreme Court of the United States.
By their findings of fact, the jury in this case, in effect, found that the defendant was negligent in failing to use reasonable care to provide the plaintiff a safe place to work in that he was required to work on a cross-tie that was elevated a substantial distance above the ground level while said tie was covered with grease or oil, affording unstable footing. We find substantial evidence in the record to support these conclusions.
The plaintiff was called to work in the night season to join his wreck train crew in arighting two derailed boxcars. Rain and sleet was falling. The boxcars were to be lifted back on the track by the use of a derrick car. The derrick car, when operating, was supported by four outriggers, two on each end. These out-riggers were stabilized by blocks of wood under them. One boxcar had been arighted, making it necessary to transfer the derrick and out-rigger blocks in position to aright the second boxcar. It was during this operation that the plaintiff was injured. He was required to remove the bottom-most block under one
of the out-riggers. The block was one foot wide, one-half foot thick, four feet long and weighed close to one hundred pounds and had sunk into the mud to a depth of 4 or 5 inches. It lay parallel to the tracks, with the end required to be extracted from the mud, immediately adjacent to and contiguous with a cross-tie which protruded some five inches above the ground. The tie, according to the plaintiff’s testimony, was covered with mud with grease or oil under the mud. Plaintiff’s foreman walked by and upon plaintiff’s asking for help to extract the block, was told: “You are a big, strong
man
— we are busy. Hurry up.” Two coworkers, testifying for the defendant, said that it was difficult for one man to cope with such a situation alone. Plaintiff testified that the only way he was able to extricate the block under the circumstances- was to put one foot on the tie and another on the ground and to tug away, saying, “It was so close to the cross-tie you couldn’t hardly get no position to stand to pull it out of the mud.” He also testified that as “it jumped out of the mud” and he was about to place it on his shoulder, his right foot, which was on the tie, slipped and caused him to injure his back. The record further discloses that no one experienced any slipping that day but the plaintiff and that a section foreman inspected the tracks the following day in the area where the wreck crew had worked and saw grease “where we keep the switches lubricated.”
It seems to us that from these facts the jury with reason could determine that the defendant was negligent in requiring plaintiff to proceed alone in extricating the block under circumstances which required that he place one foot on a tie covered with mud and grease or oil and the other foot on the ground five inches lower. It is common knowledge that the foot on the lower level, under these circumstances, would carry the greater weight and that the foot on the tie, by reason of the resulting imbalance, would be likely to slip on the mud and grease or oil. Yet the foreman who saw, or in the exercise of reasonable care, should have seen this hazardous situation, permitted the plaintiff to continue without help or even a warning as to the danger facing him.
Defendant maintains that since the plaintiff did not categorically testify that he saw grease or oil on the cross-tie that “there is absolutely no evidence concerning the evidence of oil or grease on the cross-tie.” In making this statement, defendant closes its eyes to plaintiff’s statement, reiterated several times, that he knew there was grease or oil under the mud because his right shoe, the one that was planted on the tie, had a grease upon it while his left shoe, the one planted on the ground, had only mud upon it. The jury may well have reasoned that grease would have been found on both shoes had grease been present on the ground other than on the tie and that since the plaintiff saw it only on the shoe that had been on the tie, the jury could have inferred that it came from the tie. This testimony, considered with the obvious fact that a foot slipping on a surface gives such a person some feeling as to whether the slipping is due to mud or grease or oil, together with the answers of the plaintiff (no less than ten times) that there was “grease on the tie” would justify a jury finding that there was grease or oil on the tie. After all, the jury saw and heard the wit
ness and was in a position to determine the credit and the weight to be given his testimony. Moreover, they had the right to draw fair and reasonable inferences from the testimony in the light of all surrounding circumstances. This was their function under the law, and, to hold, in view of this state of the record, that there was insufficient evidence to support the findings of fact would, in our opinion, be tantamount to denying this plaintiff the right to have his complaint passed upon by a jury, a clear right accorded him under the Federal Employers’ Liability Act.
In Bailey v. Central Vermont Ry., Inc. supra., the court said at page 354:
“* * * To deprive these (railroad) workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.”
In Wilkerson v. McCarthy, 336 U. S. 53, 55, the court said:
“This court has previously held in many cases that where jury trials are required, courts must submit the issues of negligence to a jury if evidence might justify a finding either way on these issues.” (Emphasis ours.)
and Lavender, Adm. v. Kurn, supra, the court held:
“2. There being a reasonable basis in the record for an inference by the jury that the injury resulted from the defendant’s negligence, it is not within the province of the appellate court to weigh the conflicting evidence, judge the credibility of witnesses, and arrive at a conclusion opposite from that reached by the jury.
“3. In suits under the Federal Employers’ Liability Act, the appellate court’s function is exhausted when the evidentiary basis for the jury’s verdict becomes apparent, it being immaterial that the court might draw a contrary inference or consider another conclusion more reasonable.
“4. Only when there is a complete absence of probative facts to support the conclusion reached by the jury does reversible error appear. (Emphasis ours.)
And at page 653, the court said:
“It is no answer to say that the jury’s verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference.”
See Arnold v. Panhandle and Santa Fe Ry. Co. 353 U. S. 360; McBride v. Toledo Terminal Railroad Co., 354 U. S. 517; Ringhiser v. Chesapeake & Ohio Ry. Co., June 10, 1957, 354 U. S. 901.
It seems to us, moreover, that, under the circumstances disclosed in the record, the defendant should have anticipated the plaintiff injuring himself when he was required to stand with one foot on a tie raised five inches about the ground and covered with mud and grease or oil and the other foot on the ground while tugging at a heavy timber imbedded in the ground. Defendant’s foreman should have either ordered assistance for him, or provided that the mud and grease or oil be removed or its slickness reduced in some way. In any event, we conclude that fair-
minded men and women could reasonably conclude from such evidence that the employer failed to exercise reasonable care to see that its employee had a safe place in which to work and that as a consequence it was negligent.
In Rogers v. Missouri Pacific Rd. Co., 352 U. S. 500, 503, the court said:
“These were probative facts from which the jury could find that respondent was or should have been aware of conditions which created a likelihood that petitioner, in performing the duties required of him, did sustain just such an injury as he did.”
We believe, therefore, that the findings of fact made by the jury were supported by the record and were consistent with the general verdict rendered by them.
Defendant’s assignment of error No. 2 that “The trial court erred in overruling defendant’s motion to strike certain specifications of negligence from plaintiff’s petition” and assignment of error No. 3, that “The trial court abused his discretion in overruling defendant’s motion for a new trial on the ground that the verdict of the jury and the judgment of the court were contrary to law: are not well taken and are overruled.
Consistent with the foregoing, the Court of Common Pleas was not in error in overruling a motion for an order setting aside the verdict of the jury and for judgment notwithstanding the verdict of the jury, a motion for judgment on findings of fact, and a motion for new trial. Hence the judgment of said court is affirmed.
HURD, J, concurs.
SKEEL, J, dissents.