Gibson v. Beaver

• Decision Date: 10 February 1967
• Docket Number: No. 77,77
• Citation: 245 Md. 418,226 A.2d 273
• Parties: Broton GIBSON v. Paul BEAVER and Southern States Howard County Petroleum Coop., Inc.
• Court: Maryland Court of Appeals

Page 418

245 Md. 418

226 A.2d 273

Broton GIBSON v. Paul BEAVER and Southern States Howard County Petroleum Coop., Inc.

No. 77.

Court of Appeals of Maryland.

Feb. 10, 1967.

Charles A. Reese, Ellicott City, for appellant.

Richard H. Lerch, Baltimore (Lerch & Huesman, Baltimore, on the brief), for appellees.

Before HAMMOND, C. J., and HORNEY, OPPENHEIMER, BARNES and FINAN, JJ.

HAMMOND, Chief Judge.

Broton Gibson sued Paul Beaver, the driver of a fuel oil delivery truck, and Southern States Howard County Petroleum Coop., Inc., the owner of the truck, claiming damages for a heart attack he suffered while he was pulling the delivery hose from the truck to the fuel inlet at the back of his house. Judge Mayfield sustained a demurrer to Gibson's declaration without leave to amend, finding that it did not allege that the defendants under the circumstances had owed a duty to the plaintiff which they had breached. Gibson moved for a rehearing under Maryland Rule 625, claiming that the declaration did state a good cause of action and, alternatively, that the court should allow the filing of an amended narr in which original allegations would be supplemented as specified in detail in the motion.

Judge Mayfield treated the second alternative in the motion for rehearing as if it were an amended declaration and, finding it to have failed to state a cause of action, denied the motion. Gibson has appealed from the order sustaining the demurrer and the order denying the rehearing.

The allegations of the original declaration, considered as supplemented by the additional allegations set out in the motion, are in substance these:

That on January 13, 1964, a cold, windy day with several inches of snow on the ground, Beaver drove a Southern States oil truck to Gibson's house in Howard County to deliver fuel oil; that 'the snow had drifted and accumulated several feet deep in the driveway * * * and * * * Beaver, being unable to drive his truck forward or to back the truck through the snow to the back of the house to deliver the oil, positioned his truck with its front facing the house' so that the hose was far from the house inlet and it was necessary to pull the hose around the truck to get it to the rear of the house; that Beaver 'indicated' to Gibson that if he wanted fuel oil, it would be necessary for him to come out and pull the hose from the oil truck to the point of connection with the house; that Beaver had twelve years' experience as an oil deliveryman, was 'a much larger man in statute and weight' than Gibson, who was fifty-five years old at the time 'and was not experienced in delivering fuel oil or pulling hoses from fuel oil trucks'; that the distance from the truck to the house connection was approximately one hundred feet, 'a distance which * * * (Beaver) knew, or should have known, required an unreasonable effort and subjected * * * (Gibson) to unreasonable risk of harm'; that the position of the truck made the pulling of the hose 'extremely difficult'; that the defendants 'having made the judgment to deliver oil to the Plaintiff, were negligent in not providing sufficient employees to deliver the oil' under the existing circumstances, and also were negligent in assigning to Gibson a task which involved 'great risk of harm' to him while Beaver performed a task involving much less risk of harm.

We think that Judge Mayfield did not err in his rulings that no cause of action was stated by Gibson's pleadings.

Gibson voluntarily assumed the risk of injury which might result from his dragging the delivery hose from the truck to the house over snow-covered ground. 'The defense of assumption of risk rests upon the plaintiff's consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of harm from a particular risk. Such consent may be found: * * * by implication from the conduct of the parties. When the plaintiff enters voluntarily into a relation or situation involving obvious danger, he may be taken to assume the risk, and to relieve the defendant of...