Hensley v. Henkels & McCoy, Inc., 278
Decision Date | 05 June 1970 |
Docket Number | No. 278,278 |
Citation | 265 A.2d 897,258 Md. 397 |
Parties | Thomas Michael HENSLEY, a minor etc., et al. v. HENKELS & McCOY, INC. |
Court | Maryland Court of Appeals |
John D. Connelly, Clinton, for appellants.
Hal C. B. Clagett, Upper Marlboro (Thomas A. Farrington and Sasscer, Clagett, Powers & Channing, Upper Marlboro, on the brief) for appellee.
Argued before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.
This case is an admitted attempt at an end run around the off-expressed Maryland doctrine which states, '(T)he owner of land owes no duty to a trespasser or licensee, even one of tender years, except to abstain from wilful or wanton misconduct and entrapment.' The most recent pronouncements of this doctrine are found in Hicks v. Hitaffer, 256 Md. 659, 261 A.2d 769 (1970), and Mondshour v. Moore, 256 Md. 617, 261 A.2d 482 (1970). We shall sustain the action of the trial judge who refused to permit the end run.
Appellee, Henkels & McCoy, Inc., is a contractor which on April 12, 1967, was engaged in the construction of a utility line for Potomac Electric Power Co., Inc. (PEPCO). It does not clearly appear whether PEPCO owned in fee simple the land upon which the line was being erected or whether it merely owned an easement across the land, nor is it necessary to our decision.
High towers had been erected. The manner of stringing the wires between these towers called for the hanging of pulleys from the cross arms of the towers. Rope was strung through the pulleys. It looped from one tower down toward the ground and then up to the next tower. The operation was described in the words of the general superintendent of the construction as follows:
One witness described the rope as coming within two feet of the ground. The distance between the truck and the place where the rope was tied down was estimated at 3,000 feet. The truck was out of sight of the area where this incident occurred. The method here used was described as the usual one for getting conductor lines strung up on the towers. Normal procedure was for the line to be pulled up before the end of the working day.
On the day in question young Hensley, then 10 years of age, went out to play on the land upon which the power line was being erected. He began swinging on the rope while waiting for friends. At this time the contractor began taking up the slack in the rope. Young Hensley said, . He looked down and 'was scared'. 'Up top it stopped around five seconds and then (he) started going hand over hand and then they reeled (him) in.' He was going toward the back yard of a neighbor '(b)ecause it was lower'. '(W)hen they reeled (him) in (he) just went back there and (he) couldn't hold on any longer and (he) just fell'.
Suit was brought on behalf of young Hensley for his injuries and his father sued for expenses. A jury returned a verdict of $37,000.00 in favor of the boy and $5,400.00 in favor of the father. Judge Powers directed entry of a judgment n. o. v.
Hensley notes that in State v. Machen, 164 Md. 579, 165 A. 695 (1933), Chief Judge Bond said for the Court:
"* * * The licensee must take the premises as he finds them. At most, he can claim only that the licensor shall abstain from entrapping him to his harm; shall not create new and undisclosed sources of danger without warning him of the change in situation.' Burdick, Law of Torts (4th Ed.), 548.' Id. at 583, 165 A. at 696. (emphasis added);
and that this statement was repeated in Brinkmeyer v. Iron & Metal Co., 168 Md. 149, 153, 177 A. 171 (1935); and in Myszkiewicz v. Lord Baltimore Filling Stations, 168 Md. 642, 648, 178 A. 856 (1935). From these statements Hensley here fashions his argument in his attempted end run.
Although there was no evidence of children's playing on the lines in question prior to the current incident, there was evidence of use of the land upon which the pole line was erected as a means of going to and from church and school, as a football field, and as a place to play with sleds when snow was on the ground. There was testimony from a neighbor that the children passed over the area going to and from school at the same time workmen were there and one of the foremen testified that employees had chased boys away from the rope earlier in the day.
Hensley believes on the strength of the cases just cited and Jackson v. Penna. R. Co., 176 Md. 1, 3 A.2d 719 (1939); Susquehanna Power Co. v. Jeffress, 159 Md. 465, 150 A. 788, 71 A.L.R. 1198 (1930); and Maenner v. Carroll, 46 Md. 193 (1877), that the contractor has here 'created a new and abnormal condition which increases the danger beyond that which the licensee had reason to regard as naturally attaching to his habitual use', and that '(i) n such case the owner or possessor of land must give notice of the change to the bare licensee', that no such notice was given and, therefore, the contractor is liable to Hensley.
We first turn to an examination of each of the cases cited by Burdick in his work for the proposition that the licensor 'shall not create new and undisclosed sources of danger, without warning him of the change of situation' in an effort to determine the meaning intended by the author. We find that none of those cases support the position here taken by Hensley.
In Beck v. Carter, 68 N.Y. 283, 23 Am.Rep. 175 (1877), excavation was done in close proximity to a highway. In holding the owner liable for the injuries sustained by one who fell in the excavation, the court said:
In Heskell v. Auburn L. H. & P. Co., 209 N.Y. 86, 102 N.E. 540 (1913), the suit was by a telephone company employee against an electric company. Telephone wires were placed upon the pole of the electric company with 'the gratuitous permission of the (electric company), implied through its passive acquiescence'. '(T)he intestate was directed by the telephone company to ascertain and report to it what was to be done to remedy a reported defective condition of the telephone wires and he came in contract with the (electric) wire while he was executing the direction.' At page 92, 102 N.E. at p. 541 the court said, '(T)he sole duty of the (electric company) was abstention from inflicting intentional or wanton or willful injury.' It then went on at page 94, 102 N.E. at p. 542 to distinguish Braun v. Buffalo General Electric Co., 200 N.Y. 484, 94 N.E. 206 (1911), saying:
Close reading of the two cases of Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213 (1894), and 18 So. 319 (Miss.1895), cited by Burdick reveals that they are of no help to Hensley. In the later case of Ingram-Day Lumber Co. v. Harvey, 98 Miss. 11, 53 So. 347 (1910), also cited by Burdick, no liability was held to exist when an individual took passage on a logging train 'in the furtherance of some purpose of his own in seeking employment', the court holding that in going upon the private lands of the logging company the decedent took upon himself all the risk of such entry. It distinguished the case of Albion Lumber Co. v. De Nobra, 72 F. 739 (9th Cir. 1896), stating:
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