State ex rel. Hill v. Industrial Commission

172 Ohio St. (N.S.) 115

• Court: Ohio Supreme Court
• Decided: April 5, 1961
• Docket: No. 36661
• Status: Published

Opinions

Per Curiam.

The question presented is whether Section 161 of Bulletin 202, issued by the Industrial Commission, is a specific safety requirement within the meaning of Section 35 of Article II of the Constitution.

That section of the bulletin reads as follows:

“Section 161. When it is necessary to move or operate a shovel or crane or any other type of hoisting apparatus or construction equipment under or close to electric wires, ample clearance shall be provided, together with such precautions as may be necessary to prevent contact between any part of the equipment and the wires.

“Recommendation: Ten (10) foot clearance should be maintained on all electric lines carrying 100 volts or higher voltage. If the voltage is unknown or this working distance cannot be maintained, the utility company serving the area should be contacted.”

The section is not specific. It provides that “ample clearance shall be provided” with a recommendation that a ten-foot clearance should be maintained. It does not specifically provide that a ten-foot clearance is ample or that there shall be a ten-foot clearance. The section provides further, “together with such precautions as may be necessary,” without naming or suggesting what those precautions are or may be.

The “recommendation” provides that, if the voltage is unknown or the working distance cannot be maintained, the utility should be contacted, but does not provide what, if anything, the utility (power company) must or should do when contacted. A recommendation is not a specific requirement.

Section 161 is not such a specific safety requirement as affirmatively directs the employer or establishes a standard which he must follow.

The relatrix has not stated a cause of action in mandamus. Therefore, the amended petition is dismissed and a writ denied.

Writ denied.

Weygandt, C. J., Zimmerman, Matthias and Bell, JJ., concur. Herbert, J., dissents.