Bull S. S. Line v. Fisher, to Use of Globe Indem. Co.

• Decision Date: 08 December 1950
• Docket Number: No. 44,44
• Citation: 196 Md. 519,77 A.2d 142
• Parties: BULL S. S. LINE v. FISHER, to Use of GLOBE INDEMNITY CO.
• Court: Maryland Court of Appeals

Page 519

196 Md. 519

77 A.2d 142

BULL S. S. LINE v. FISHER, to Use of GLOBE INDEMNITY CO.

No. 44.

Court of Appeals of Maryland.

Dec. 8, 1950.

Michael P. Crocker and Frank T. Gray, Baltimore (Jessie Slingluff, Jr., and Marbury, Miller & Evans all of Baltimore, on the brief), for appellant.

Isidor Roman Daniel E. Klein, Baltimore (W. Giles Parker Baltimore, on the brief) for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

Appellee sued appellant on his own behalf and on that of his employer's workmen's compensation carrier for injuries sustained while he was upon a quay of the Baltimore harbor as a ship's carpenter, the injuries resulting from the swinging of a load of lumber attached to a ship's boom operated by an employee of the appellant. Appellant's motion for a directed verdict was denied by the lower court, and, after a verdict against it, its motion for judgment N.O.V. was likewise denied. The questions raised are whether there was sufficient evidence of primary negligence, whether appellee was guilty of contributory negligence as a matter of law, whether the evidence showed that the appellee had voluntarily assumed the risk which caused his injuries, as a matter of law, whether the trial court failed to instruct the jury on the doctrine of voluntary assumption of risk, and whether the trial court erred in refusing to instruct the jury that the evidence showed that the appellant had no last clear chance to avoid the injuries.

The accident happened on a 900 foot pier which projects into the south side of the Baltimore harbor. Along the easternmost part of the length of that pier, and immediately adjacent to the side of the ships which load there, there extended an open apron 12 to 13 feet wide. This apron was of rough planking and carried a railroad track. To the west of the apron was a large two-story warehouse. On August 7th, 1947, between 8 and 9 A.M., the steamship Half Knot lay parallel to and along the east side of the pier taking on cargo. Shortly after 8 A.M., four ship ceiling carpenters, one of whom was the appellee, all experienced waterfront workers, arrived pursuant to a contract between their employer, the Oriole Ship Ceiling Company and the appellant, to load some rough lumber aboard the ship as a necessary part of their job of shoring and securing a deck cargo of pilings. They found two batches of 4 X 6 dunnage had to be put aboard and they requested the stevedores, employees of the appellant, to operate two winches at hatch #3 for the hoisting. These carpenters then loaded on the land end of the pier a ton of these boards upon a small truck or dolly and pushed it to a position in the center of the 12 to 13 foot apron adjacent to hatch #3 of the ship. The load was not placed directly under the boom which was to hoist it aboard, and therefore the hook attached to the boom by a cable, when it was fastened to the load was out of plumb from the boom block by a horizontal distance variously estimated from 3 to 10 feet. The hook and lumber and dolly were thus nearer to the land end of the dock than the boom block. Fisher was experienced in the operation in question, and had many times hoisted lumber aboard ships in this manner. The group of carpenters put two straps or slings around the lumber and attached the boom hook to them. When this was done, Fisher and one of the workmen were in the 5 to 6 foot space between the lumber and the warehouse, while the other two men were on the opposite side. After finishing, they all moved away from the load. The other three men stepped backward while Fisher went four or five steps, or feet, toward the shed or warehouse. Fisher said he figured the load would swing some but not exactly the way it did. The leader of the carpenters was supposed to give the signal to the winchman, but there is some conflict in testimony as to whether any signal was given at this particular time. The load, however, was ready for lifting and the winchman lifted it. It went up three or four feet, swung toward Fisher and struck him at chest level as he stood against the jamb of one of the warehouse doors.

There were two booms connected with the load and there was some testimony that there was a housefall attached to the top of the shed, but this last testimony was practically disregarded as being incorrect. There was, however, another cable attached to the offshore boom, and, in the course of the operation when the load cleared the ship, this offshore boom pulled it around to the particular point where it was to be lowered and discharged. There was testimony that the front wheels of the dolly had been caught in the railroad track, and that when the winchman took a strain on the inshore boom cable, this caused the load to pivot on the dolly wheels, and to take the direction it did, thereby striking the appellee. The appellee contends that the proper method would have been to tighten the cable of the offshore boom and to lift the load slowly, in which case it would not have swung out, but would have kept along the line of the ship until it reached the point where it was to be raised to deck level and carried over the side of the ship. The failure of the winchman to take this precaution, and the latter's action in lifting suddenly and causing the load to swing in an unexpected direction is the negligence charged against appellant. The testimony is conflicting, and in view of what we have just related, we think there was sufficient evidence to submit to the jury the question of primary negligence.

The next two questions involve the appellee, namely, whether he was guilty of negligence directly contributing to the accident, and whether he assumed the risk of such an accident. The appellant contends that the facts are so strongly against the appellee on both doctrines that it was entitled to instructions against the appellee on both as a matter of law. Before we comment upon the facts with respect to these contentions, it is advisable to differentiate between them.

It is not necessary for us, of course, to discuss what is negligence of a plaintiff directly contributing to an accident. That has been before this court and all other courts so many times that it is well known what it means. It consists of some act of negligence on the part of the plaintiff which, whether great or small, directly contributes to the happening of the accident, and, under our decisions, if it plainly appears that some negligence of the plaintiff did so contribute, the defendant is entitled to a verdict. Assumption of risk has a different basis and affects not the negligence of the plaintiff, but the degree of care which the defendant has to exercise under the circumstances. It is thus stated by Prosser on Torts, Paragraph 51, page 377: 'In its primary and proper sense, it means that the plaintiff has consented to relieve the defendant of an obligation of conduct toward him, and to take his chance of injury from a known risk. It refers to the situation in which the plaintiff, with full knowledge of the risk, voluntarily enters into some relation with the defendant involving danger to himself through the defendant's conduct. He makes the choice at his own risk, and is taken to consent that the defendant shall be relieved of responsibility. The legal position is then that the defendant is under no duty to protect the plaintiff. It is not a question of any negligence on the part of the plaintiff, who may be acting quite reasonably, and it is immaterial whether he has exercised proper...