Gutheridge, on Behalf and to Use of Ring Engineering Co. v. Gorsuch

• Decision Date: 26 October 1939
• Docket Number: 17.
• Parties: GUTHERIDGE, on Behalf and to Use of RING ENGINEERING CO. et al. v. GORSUCH.
• Court: Maryland Court of Appeals

8 A.2d 885

177 Md. 109

GUTHERIDGE, on Behalf and to Use of RING ENGINEERING CO. et al. v. GORSUCH.

No. 17.

Court of Appeals of Maryland

October 26, 1939

Appeal from Superior Court, Baltimore City; J. Abner Sayler, Judge.

Action by Wm. E. Gutheridge, on his own behalf and to the use of Ring Engineering Company, employer, and the Globe Indemnity Company, insurer, against H. E. Gorsuch for injuries sustained when struck by defendant's truck. From a judgment for the defendant, plaintiffs appeal.

Reversed with costs and new trial awarded.

Harold M. Vick and John A. Cochran, both of Baltimore, for appellants.

W. Hamilton Whiteford, of Baltimore (Foster H Fanseen, of Baltimore, on the brief), for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.

JOHNSON Justice.

This is an appeal from a judgment entered by the Superior Court of Baltimore City upon a directed verdict in favor of appellee (defendant therein) against plaintiffs.

On May 6, 1938, William E. Gutheridge, while working for Ring Engineering Company at the real estate development known as 'Northwood', in Baltimore, Maryland, sustained serious bodily injuries, as a result of being struck by an automobile truck allegedly owned by appellee and negligently operated by his agent and servant. Gutheridge received compensation under the provisions of Article 101 of the Code known as the 'Workmen's Compensation Law', and brought the present suit on his own behalf and to the use of his employer and its insurer to recover damages for the injuries he had sustained. It was alleged in the declaration that his injuries were occasioned by the negligent operation and management of defendant's truck operated, controlled and managed by agents and servants of the defendant while Gutheridge was exercising due care. Subsequently, in compliance with defendant's demand for the particulars of plaintiff's claim, it was again alleged that the truck causing plaintiff's injuries was owned by the defendant and operated by his agents and servants. To the declaration as thus amplified appellee filed the general issue plea.

The case came on for trial, and when testimony on behalf of the plaintiff had been concluded, the defendant offered three prayers numbered A, B and C.

The trial Court granted appellee's A prayer instructing the jury that the plaintiff had offered no legally sufficient evidence to entitle him to recover and their verdict must be for the defendant, but refused his B and C prayers, by each of which directed verdicts were also sought.

The correctness of the trial Court's action in granting appellee's A prayer withdrawing the case from the consideration of the jury must be tested by the rule uniformly announced by this Court which is whether, assuming the truth of the evidence and inferences legitimately deducible therefrom in support of the plaintiff's right to recover, such evidence is of sufficient probative force to enable a mind of average intelligence to draw a rational conclusion therefrom in support of that right. If the answer to this inquiry be in the affirmative, it was error to withdraw the case from the consideration of the jury. General Automobile Owners' Ass'n v. State, 154 Md. 204, 140 A. 48; Owners' Realty Co. v Richardson, 158 Md. 367, 148 A. 543; Merrifield v. Hoffberger Co., 147 Md. 134, 127 A. 500; Miller v. Baltimore, 161 Md. 312, 157 A. 289; Minch v. Hilkowitz, 162 Md. 649, 161 A. 164; State v. Hecht Co., 165 Md. 415, 169 A. 311; Roycroft v. Nellis, 171 Md. 136, 188 A. 20; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 A. 338; Universal Credit Co. v. Merryman, 173 Md. 256, 195 A. 689.

There was testimony offered on behalf of Gutheridge, which, if believed by the jurors, would have enabled them to find that on the afternoon of May 6, 1938, he was employed by Ring Engineering Company to work under orders from his foreman at the Northwood development. Specifically, his duties were to keep a steam shovel oiled and greased and to keep the line of trucks moving under the shovel. From time to time a truck would become 'mired' in the earth and Gutheridge was required to render assistance in getting the trucks out from beneath the shovel. Those duties had been performed by him throughout the day until he was injured. Two trucks, which for convenience are described as truck No. 1 and truck No. 2 were being used at the site to carry away excavated dirt. Truck No. 2 became 'mired' in the earth and Gutheridge ordered the driver of truck No. 1, which weighed five tons and was owned by defendant, to move out of the line from behind truck No. 2 to a position in front of it, and thereupon attached a chain from 6 to 8 feet in length from the front of truck No. 2 to the rear chassis of truck No. 1, but due to the overhang of the rear of No. 1 truck, the space between the two trucks was only approximately 4 feet. After attaching the chain he stepped aside and waved to the trucks to move ahead and after they had done so and truck No. 2 became free, he waved the drivers of both trucks to stop in order that he might disengage the chain which connected them. To the rear of the forward truck there was a slight incline, but Gutheridge at the time they had stopped upon signal was standing at a position on the driver's side of No. 1 truck and in full view of its driver. He then waved the driver of the No. 2 truck forward in order that the chain might be slackened and, that movement having been effected, stepped between the two trucks and detached the chain from the rear of No. 1 truck, but while in the act of detaching it from the front of No. 2 truck, which he was then facing, the driver of No. 1 truck without warning of any kind suddenly backed or permitted the truck to drift backward against his body pinning him against the front of the rear truck and severely injuring him. Due to the noises occasioned by engines of the trucks and other machinery it was practically impossible for him to hear a warning, and throughout the day an understanding had existed between him and the drivers that the trucks were to move only upon his signal. Herman Arndt, operator of he steam shovel which loaded the trucks, testified that at the time the motors of both trucks were running and there was considerable noise; that he saw the forward truck coming toward Gutheridge...