Aleshire v. State to Use of Dearstone

• Decision Date: 16 May 1961
• Docket Number: No. 265,265
• Parties: Russell L. ALESHIRE et al. v. STATE of Maryland, to the Use of Irene P. DEARSTONE, etc., et al.
• Court: Maryland Court of Appeals

Page 355

225 Md. 355

170 A.2d 758

Russell L. ALESHIRE et al.

v.

STATE of Maryland, to the Use of Irene P. DEARSTONE, etc., et al.

No. 265.

Court of Appeals of Maryland.

May 16, 1961.

James F. Couch, Jr., Mt. Rainier (Couch & Blackwell, Mt. Rainier, on the brief), for appellants.

Jerrold V. Powers, Upper Marlboro (Sasscer, Clagett & Powers, Upper Marlboro, on the brief), for appellees.

Before HENDERSON, HAMMOND, PRESCOTT, HORNEY and SYBERT, JJ.

PERSCOTT, Judge.

The appellants, the defendants below, appeal from judgments in favor of the plaintiffs below. The appellants were the owner, Tester, and driver, Aleshire, of a truck hauling sand and gravel from the Contee Sand and Gravel Company. Plaintiffs' decedent was killed when sucked into a sand hopper, upon which he was walking, and from which Aleshire was attempting to obtain a load of sand.

In order to determine the questions raised, it will be necessary to set forth the facts in some detail. Contee operates a production, processing, and distribution of sand and gravel mterial business, primarily from a site near Beltsville, Maryland. It also is the owner of a subsidiary corporation, Prince George's Sand and Gravel Company, generally located in the same area. Contee's physical setup includes a wash plant, consisting of several bins or material containers, mounted on concrete piers, into which sorted material (sand and gravel) is dumped, and from which trucks are loaded. The trucks drive underneath the bins by using driveways between the concrete piers. The Company also has an area in which sand and gravel material is stock piled, and from which materials may be received by truckers for delivery.

The 'plant' is located in one area; the 'stockpile' in another. The terms must be distinguished in considering the evidence.

Contee maintained a dispatcher, who instructed the drivers what to load and where to deliver the same. Appellant Tester was the owner of a sand and gravel hauling truck, operated by his employee, Aleshire. Aleshire generally hauled out of the Prince George's Sand and Gravel Company, but on the day of the accident, he had been ordered to report to the dispatcher of Contee for hauling from Contee. Appellees' decedent was an employee of Contee, working as a member of a repair and maintenance crew, under the direction of a Mr. Frazier, who was the foreman thereof. The normal working hours for the wash plant were from 7:00 a. m., to 5:00 p. m. Monday through Friday, and from 7:00 a. m., to 12:00 noon on Saturdays. Generally, the material hauled out of Contee's plant was hauled by independent truck owners (although Contee also owned and operated its own trucks), and operated by their employees. After driving underneath a particular bin at the plant, the driver would stop and call instructions for his load to the company loader, who would, thereupon, load the truck by mainpulating levers located at the bottom or mouth of the bins, in a room on the floor above the body of the truck. This room was reached by ascending outside steps. The levers were of simple construction, consisting merely of metal rods that opened the mouths of the chutes to permit sand or gravel to drop into the trucks.

Frazier, the foreman of the work crew, testified that certain repair work was to be done on a Saturday afternoon, the day of the accident. This work was to remove and replace a twelve inch vertical pipe that ran down from the sand classifier which was about 30 feet in diameter. This involved hooking the pipe onto a crane, taking a torch and cutting off the pipe from a tank, and replacing the same with a new pipe, which was to be welded onto the tank. Saturday had been selected, because the normal operations of Contee generally closed at noon on that day.

The crane had been ordered, specifically, to assist in making the repairs, and it was in position (except the boom had to be swung around in place), with its operator. The sand bin was below the sand classifier, and, as Frazier needed a good level platform to work from at the level of the top of the sand bin, he had made arrangements to have the bin left loaded, so he and his crew could work from the top of the sand.

After the plant had been shut down for some twenty minutes, he took his two main men, the riggers, to the top of the bin, walked across the sand, and showed them where he wanted 'to hook on with the crane,' and directed them 'to get their torches up there and get things ready to start cutting the pipe.' At that time, there were no trucks 'in sight as far as [he] could see.' He called to Dearstone, who was still on the ground, and directed him to bring up a guy chain. Then he went down the steps (passing Dearstone as he went up with the chain) in order to check the crane and give its operator instructions. He had only been off the ground for about five minutes. When he reached the ground, he saw a truck in the driveway under the bin in which the men were working; and, at the same time, someone 'hollered' that Dearstone had gone down in the sand bin. Aleshire, who was unknown to him at the time, was standing on the ground, either beside his truck or half-way between the truck and the steps. He rushed up the steps to be of assistance to Dearstone, but he and the crew were unable to save him.

Mitter, one of the riggers, testified that he was on the sand at the top of the sand bin; that he and the others had walked across the sand without difficulty; that he could not see any trucks from where he was; and that Dearstone was walking across the bin to give the chain to the other rigger, when the 'center dropped down,' and Dearstone was covered up.

Aleshire was then called as a witness by the plaintiff. He stated that he had hauled several previous loads from Contee on the fatal Saturday and when he returned, shortly after noon, the plant was not in operation. He reported to Contee's dispatcher, one Duvall, who told him to 'go get a load of sand.' He proceeded to the plant and saw Frazier standing there, but he did not make any inquiry of Frazier. He went up the steps to the lever room, where he had been before, and pulled one of the three levers ('all of which empty into the same thing'); whereupon sand came out of the chute and finally Dearstone's leg.

Duvall, the dispatcher, testified that the truck drivers reported to him, and he instructed them what to load and where to deliver the loads. On the Saturday in question, the plant had ceased normal operations at noon, but the State desired deliveries of sand during the afternoon on the 'Princemont' project. Consequently, Contee had arranged to have a crane and frontend loader at the stockpile, with its (Contee's) operators to load the trucks that afternoon. There was no Contee loader at the plant that afternoon. The sand supplied to this particular State job was supposed to come from the stockpile, as the sand had been permitted to dry before being placed there, while the sand at the plant was too wet to meet specifications. He knew that some repairs were going to be made at the plant that afternoon, but the nature of the repairs was unknown to him.

He further stated that, 'nobody loads theirself out at that plant, * * * it has always been that way,' but he admitted that he had never told, 'any one particular person that they [were] not to load theirself,' nor had Contee ever posted or disseminated a rule, or regulation, to that effect.

On Saturday, Aleshire had hauled one or more 'private' loads, and then was assigned to haul to the Princemont job. Duvall instructed him (just prior to the Dearstone accident) 'to get a load of sand for the State.' When Aleshire left the office, Duvall could not see where he went, but he was supposed to have loaded from the stockpile, because of the State's specifications. Duvall flatly denied that he told Aleshire to go to the plant and get a load of sand.

He stated on cross-examination, however, that it was possible he 'told [Aleshire] to load a load of sand and didn't exactly specify to load out of the plant or the [stockpile]'; that he did not inform Aleshire that repairs at the plant were to be made that afternoon; and that, when Aleshire came to his office after the tragedy, he did not remonstrate with him for being at the plant, nor did he say to Aleshire that he had broken any company rule.

Three truck drivers were then called by the plaintiffs, and testified that they could get a load of sand out of the plant early in the morning, but after 'the drain out in the morning' they had to get it from the stockpile. Two of them admitted that they had, on occasions, loaded their own trucks.

Aleshire then took the stand as a witness for the defendants. He stated that he had hauled one load to Princemont (he thought) on Saturday. This load he had obtained from the hopper (a part of the plant), and it had been accepted on the job. When he returned he was told by Duvall to 'get another load of sand out of the hopper.' He drove his truck to the hopper and stopped underneath it. Frazier was standing there, and although he saw Frazier and Frazier saw him, neither spoke. He walked up the steps, proceeded to the room, and pulled 'his levers'; and the accident happened. After the accident, he returned to the office and asked Duvall why he had sent him up there, 'to pull them gates on that boy?' To which Duvall replied, '* * * I didn't know that man was in the hopper. I knew they were out there somewhere, but whereabouts I did not know.'

He further stated that he had loaded for himself before, he had seen others do it, and he had never been told by anyone about any company rule or policy that drivers were not supposed to load for themselves.

Alonzo Myers, another truck driver, testified that he had been hauling to the Princemont project that Saturday morning, and he had obtained his loads from the plant. The sand was damp, but it wasn't wet. One, or more, of his loads, he had loaded himself.

Richard Myers,...