Vanduzen Gas & Gasoline Engine Co. v. Schelies

Hamilton Circuit Court

Vanduzen Gas & Gasoline Engine Co. v. Schelies

10 Ohio Cir. Dec. 256

Hamilton Circuit Court·Decided January 15, 1899·Published

Opinion

Swing, J.

The gist of the action against the engine company by Schelies.was that the company, through its foreman, peremptorily ordered him to perform a duty without providing proper safeguards for his protection, and that by reason thereof he was injured.

The case does not come within the principle of Coal Co. v. Norman, 49 Ohio St., 598, but is more like Railway Co. v. Lavalley, 36 Ohio St., 226, and cases cited by defendant in error. It was the duty of Schelies to obey the peremptory order of his foreman, unless the danger to him in doing so was obvious, and was so apparent to him that it would have been contributory negligence on his part to have obeyed the order. Whether it was or was not, in this case, is a question, under proper instructions, to be left to the jury.

We think a case was alleged in the petition, and, therefore, was not subject to demurrer. We think the charge of the court was very fair and correct, and that the jury was authorized from the evidence in finding the verdict.

Judgment affirmed; no penalty.

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Swing, J.

The gist of the action against the engine company by Schelies.was that the company, through its foreman, peremptorily ordered him to perform a duty without providing proper safeguards for his protection, and that by reason thereof he was injured.

The case does not come within the principle of Coal Co. v. Norman, 49 Ohio St., 598, but is more like Railway Co. v. Lavalley, 36 Ohio St., 226, and cases cited by defendant in error. It was the duty of Schelies to obey the peremptory order of his foreman, unless the danger to him in doing so was obvious, and was so apparent to him that it would have been contributory negligence on his part to have obeyed the order. Whether it was or was not, in this case, is a question, under proper instructions, to be left to the jury.

We think a case was alleged in the petition, and, therefore, was not subject to demurrer. We think the charge of the court was very fair and correct, and that the jury was authorized from the evidence in finding the verdict.

Judgment affirmed; no penalty.

Vanduzen Gas & Gasoline Engine Co. v. Schelies, 10 Ohio Cir. Dec. 256 (Ohio Super. Ct. 1899).

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