Consolidated Mechanical Contractors, Inc. v. Ball

• Decision Date: 10 November 1971
• Docket Number: No. 45,45
• Citation: 283 A.2d 154,263 Md. 328
• Parties: CONSOLIDATED MECHANICAL CONTRACTORS, INC. v. Harlin BALL and Bonnie Ball.
• Court: Maryland Court of Appeals

Page 328

263 Md. 328

283 A.2d 154

CONSOLIDATED MECHANICAL CONTRACTORS, INC. v. Harlin BALL and Bonnie Ball.

No. 45.

Court of Appeals of Maryland.

Nov. 10, 1971.

William M. Nickerson, Baltimore, for appellant.

Francis D. Murnaghan, Jr., Baltimore (A. Harold DuBois, A. Freeborn Brown and Lawrence S. Lanahan, Jr., Bel Air, on the brief), for appellees.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

McWILLIAMS, Judge.

In November 1966 Harlin Ball fell into a hole and because he was hurt he and his wife sued the appellant (Mechanical). The case was tried in the Circuit Court for Baltimore County before Haile, J., and a jury early in November 1970. The jury gave Ball $100,000; they gave Ball and his wife $20,000. Motions for judgment n. o. v. and for a new trial were denied. From the ensuing judgments Mechanical has appealed, assigning as error Judge Haile's unwillingness to direct a verdict in its favor. The error was threefold, it says. Tich (about whom more later) should not have been allowed to give evidence as an expert; Ball should have been held, as a matter of law, to have been contributorily negligent or else to have assumed the risk of injury; Ball proved too much and too little, calling for the application of the 'Langville rule.' Langville v. Glen Burnie Coach Lines, Inc., 233 Md. 181, 195 A.2d 717 (1963). Since we see no error we shall affirm the judgments.

Mechanical had contracted with the United States (Government) for the replacement of underground steam lines at the Aberdeen Proving Grounds. We shall be concerned only with the line running from Manhole No. 6 to the southwest corner of Building No. 338, a distance of about 120 feet, 80 feet of which was paved to accommodate the movement of tanks and other heavy vehicular traffic. To do its job Mechanical had to dig a trench about six feet deep. It was required by the contract to place 'guard rails, barricades and red lights or torches' around any excavation wherever it was 'exposed to walkways, sidewalks, driveways or thoroughfares' in order to keep pedestrians and vehicles from blundering into it.

The Government, in 1965, had employed Ball as an experimental mobile equipment mechanic. On 4 November 1966 he was assigned to the night shift, 4:00 p. m. to 12:30 a. m. He and another mechanic were engaged in replacing the front differential of an Army truck-a matter of some urgency, it seems. Around 11:00 p. m. Ball left the automotive shop, Building No. 338, to dump the dirty oil that had been drained from the discarded differential and to obtain from the oil shed fresh oil for the new differential. After dumping the dirty oil he set out for the oil shed. He could have gone back through the building and out again through a side door but he chose the more direct route which was a graveled path running across an unpaved grass plot and along the outside of the front wall of the automotive shop about a foot or two from the wall. This was the route customarily used by all of the mechanics whenever a trip to the oil shed became necessary after first dumping dirty oil.

On 4 November Mechanical's job was nearly finished. The pipes had been installed, the trench (most of it) had been backfilled, the paving had been replaced and had been allowed to harden, the barricades and the 'blinkers' had been removed. The last 10 or 12 feet of the trench, where it ran through the grass plot, had not been backfilled. It seems that completion had been scheduled for Monday, 7 November, and in fact it was done on Monday. There were no barricades, guard rails, ropes, lights or torches near the open trench. The area was poorly lighted at the time; one witness said it was 'completely dark'; another said it was 'black as pitch.'

In common with other employees Ball had been aware of Mechanical's activities during the weeks preceding 4 November. When he reported for work on 2, 3 and 4 November be drove his car over the paving where the trench had been. As he put it, 'It all looked finished, everything was done and * * * (he) thought the job was completed.' He did not know that the end of the trench had not been backfilled.

On his way to the oil shed he fell into the open trench. After he got his bearings he clambered out but whether he then went to the oil shed or returned to the shop is unclear. There is testimony both ways, but whether it is one way or the other matters little. The next morning he visited the post hospital where he was treated for injuries to his left hand and to his back. In time it developed that his injuries were more serious than at first they seemed.

At trial Ball called Gerald L. Tich to testify in his behalf. Excerpts from his testimony follow:

'Q. Where are you employed, sir? A. State Department of Education, Division of Vocational Rehabilitation.

'Q. For how long have you been associated with the State Department of Education, Division of Vocational Rehabilitation? A. Five years.

'Q. During this period of time, did you receive any special training or courses in vocational rehabilitation? A. Yes, I have.

'Q. Where, sir? A. I have taken courses at the University of Maryland, Loyola College and special courses in alcohol at Hood College and at Rutgers Institute in New York.

'Q. Tell us, briefly, what the Division of Vocational Rehabilitation is? A. We are involved in the process of receiving referrals from private physicians and from hospitals, from Social Security, the Department of Public Welfare, to evaluate a person's capacity to work. The program was established by the Federal Government in 1920. It was felt at that time and it is felt now that we are able to substantially able to remove many people from the welfare rolls or from the rolls of Social Security to stability by vocational rehabilitation.

'Q. Did there come a time when Mr. Harlin Ball was referred to your office? A. He was referred by the Social Security Administration in December of 1968.

'Q. And, did you conduct some sort of an examination into his background, working abilities? A. Yes, if I can put it, perhaps, into a historanic (sic) light. He was referred by the Social Security Administration in December of 1968. We had several discussions about the problem. I had gotten a report from Dr. Aaronson, from Dr. Filtzer and from other orthopedic surgeons involved. I was not satisfied and neither was Mr. Ball and we went to Dr. Pierpont and with his permission, I referred him privately to Dr. Robert Abrams.

'Q. Who is Dr. Robert Abrams? A. He is an orthopedic surgeon.

'Q. Now, with this medical information, did you have any other examinations which your office performed, some sort of tests? A. Yes, we have private psychological tests in order to make a full assessment.

'Q. This, again, is on a referral basis, is it not, other agencies or other persons are involved. You are hiring other persons to do this? A. Yes.

'Q. How about in your office itself? A. Certainly, I am adept and able to make vocational evaluation. The approach is client centered which is in some way different other than the other evaluation. It is a very subjective measure.

'Q. Over what period of time did this examination take? A. From December of 1968 until Mr. Ball and I concluded our relationship which was April of 1970.

'Q. And in April of 1970, what was the opinion of the Division of Vocational Rehabilitation?

'(Mr. Nickerson) Objection. It appears obvious from the man's testimony that he is going to relate this to certain reports, medical information he received from other people, so I think we ought to sift that out before he testifies unless he is going to testify from his own examination and his own knowledge.'

'(The Court) I wanted to rule on the objection. I think it would be well for the court to understand just what this opinion arises out of, whether it is the psychological evaluation or the vocational evaluation. * * *.'

'(The Court) I need a further definition of what a vocational evaluation involves.

'(The Witness) It involves a total assessment of an individual taking into consideration the medical aspect, the vocational aspect, the psychological aspect, the sociological aspect, the sum total of one's existence, if possible, to assess all of the factors involved and putting them into some meaningful light.'

'(The Court) This is a public service then, to industry and employees?

'(The Witness) Perhaps so, if we can remove him from the rolls of dependency, he is certainly a tax paying citizen.

'(The Court) My decision is to allow him to testify to his vocational evaluation.

'(Mr. Nickerson) May I note an exception, for the record?

'(The Court) Yes.

'(Mr. Dubois) State what your final evaluation was with respect, from the vocational rehabilitation standpoint of view? A. I made recommendations to Mr. Ball in light of his disability without further medical disability, he would be permanently and totally disabled from work as far as we know in this area.

'Q. You are familiar with the vocational rehabilitation in the Baltimore-Harford County area? A. Yes.

'Q. And, the physical capabilities required for various jobs? A. Yes.'

'Q. Were there any other agencies you got information from? A. The Social Security Administration.

'Q. Is that the only government agency? A. Well, different departments in the Social Security Administration. That's it.

'Q. What were the two departments? A. One was Disability Determinations which make a disability determination of a person's ability or inability to work. The other was a re-determination by Social Security since Mr. Ball was turned down the first time. They did a reevaluation with a hearing examiner. At that time he was allowed Social Security benefits.

'Q. Total disability benefits? A. Yes.'

I.

Mechanical attacks the testimony of Tich because, it says, his opinion was based in part on medical reports not in evidence, thereby making it inadmissible despite the fact that it was based...