Hilton Quarries, Inc. v. Hall

• Decision Date: 13 January 1932
• Docket Number: 47.
• Citation: 158 A. 19,161 Md. 518
• Parties: HILTON QUARRIES, INC., v. HALL.
• Court: Maryland Court of Appeals

158 A. 19

161 Md. 518

HILTON QUARRIES, INC., v. HALL.

No. 47.

Court of Appeals of Maryland

January 13, 1932

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Action by Mack McLain Hall for his own use and benefit and for use and benefit of the Bankers' Indemnity Insurance Company against Hilton Quarries, Incorporated. From a judgment for plaintiff, defendant appeals.

Reversed and new trial awarded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT PARKE, and SLOAN, JJ.

Walter L. Clark and Roszel C. Thomsen, both of Baltimore, for appellant.

Rowland K. Adams and Charles T. Le Viness, 3d, both of Baltimore (J De Ford Weil, of Baltimore, on the brief), for appellee.

BOND C.J.

This appeal is from a judgment for damages for personal injuries sustained by a truck driver, alleged to have been struck by a box of crushed stone swung from a derrick in a quarry, as the stone was being loaded into the truck. The stone was to be hauled from the quarry under a contract between the quarrymen and the owner of the truck, who was the immediate employer of this driver. Compensation was awarded and paid the driver by the insurer of the truck owner, under the Workmen's Compensation Act, and the present suit has been brought over against the quarry owner by the workman for the use of himself and the insurer of his immediate employer. Code, art 101, § 58. The exceptions pressed in this court are all to rulings upon prayers for instructions to the jury.

According to evidence presented, the Hilton Quarries, defendant, and now appellant, had a contract with William H. Schmeltz, an owner of trucks, whose regular business it was to contract for hauling stone and other loads, and Schmeltz sent Mack McLain Hall with a truck to do the work contracted for in this instance. All directions as to the details of loading and hauling away were given by the owner of the quarry to the driver, in so far as directions were needed. The loading was done by means of a stiff-legged derrick, with a boom fifty-five feet long, and stone contained in wooden boxes about four feet square was lowered to the truck; then, as the boxes rested suspended above the truck, they were swung into position by hand, and finally lowered into the truck body and released there. One side of the box would be opened and the box then raised away by means of the derrick. There was conflicting evidence on the position customarily or properly taken by the men who stood by at the truck to direct the stone. For the plaintiff, it was testified that it was customary and more convenient, if not necessary, for the truck driver to stand on the top of his driving cab, and do this work, and that the position on top of the cab was a necessary one on this morning especially, because the derrick operator was then bringing the stone around across the cab to the truck. Witnesses on behalf of the defendant, on the other hand, testified that it was no part of the duties of the truck driver to assist in loading stone; that for any man who did that work, or who was at the truck, it was improper to stand on the cab for that was a dangerous position; that he should stand on the running board, or on the ground; and that this truck driver had been warned several times to get off of the cab when stone was swinging around, and would not have been permitted to stand there at the time of the accident if the quarry foreman had seen him. The plaintiff denied having received such a warning. It was while the plaintiff was standing on the cab that he was hurt. He testified that he was receiving a box of stone there as he regularly did, that ordinarily the derrick operator, who could see the truck, stopped the stone when it was over the cab; but that in this instance it continued to swing, contrary to expectations, struck the plaintiff on the head, and caused him to fall forward and to the side of the truck, upon a fender, and continued to drop, and dropped upon him and injured him. He testified that the boom of the derrick fell on the cab and damaged it; and, on the other hand, witnesses for the defendant testified that the boom did not fall so far, but that it was the box that struck the cab after the man had fallen off. And it was denied that the box fell on the man; some of the witnesses testifying that the broken cab fell on him. Witnesses on both sides appear to agree that the box of stone fell out of control for some distance. All of the conflicts of evidence on other points were, of course, for settlement by the jury.

As to the cause of the excessive swing and fall of the stone, the plaintiff produced no testimony except to the effect that a tooth had been broken out of a ratchet on the drum on the hoisting engine, and that this would cause the checking "dog," which falls between the teeth and holds the drum, to slip over the space left by its absence. That testimony merely suggested the break as a possible cause. It was not testified that in fact it did cause the fall in this instance, and, on the contrary, it was testified by the defendant's witnesses that it had no part in the accident, and that it is not a source of danger, because its utmost effect is only to cause the dog to move just so much further before it catches and holds against the next tooth. The court instructed the jury that there was no evidence in the case legally sufficient to prove that the broken cog had caused the accident; and in the appellee's brief the cause is taken to have been that stated in an explanation offered by the defendant's derrick operator, or engineer. Apparently part of that explanation was from observed fact, and part of it from inference or speculation. The regular fall of the derrick's load is controlled by a foot brake beside the drum holding the cable which runs from the engine out on the boom for the lowering and raising, and the derrick man thinks that at the time of the accident he must have checked the fall too suddenly, by this foot brake, and caused a rebound of the load sufficient to make the dog jump out of the ratchet on the drum, and thus to permit the line to run out and drop the stone somewhat before it could be caught and stopped by the brake. The load did drop, he testified, but dropped only a short distance. This, the witness said, was a consequence that had never before happened in his experience. The result seems to have been one which he, at least, did not anticipate as likely. The evidence agrees that he was an operator of long experience. And no defect, other than the broken cog, was found in the hoisting machinery.

Five of the defendant's prayers sought a direction of a verdict for the defendant because of insufficiency of proof of negligence on the part of defendant's servants, because of assumption of the risk of such an accident and injury by the plaintiff in taking up a dangerous position, because of his contributory negligence, and because it had not been shown which of two or more possible causes produced the accident. These prayers, we think, were all properly refused.

While, as has been said, the derrick operator's explanation seems to have been to some extent inferential, or speculative, this court concludes that the jury might find from it that his sudden manipulation of the foot brake did cause a rebound and momentary loss of control of the box of stone, and, given that finding, it would seem permissible for the jury as practical men to conclude that this too sudden action was not consistent with the exercise of ordinary care. And a duty of care toward the plaintiff in the swinging of the stone could be found from the testimony that it was part of his work to assist in loading. We do not therefore see that there is a legal insufficiency of evidence of negligence on the part of the defendant's servants.

Defenses of assumption by the plaintiff of the risk of injury, and of contributory negligence on his part, which are much relied on in the case, both refer to the effect of his taking the position on the top of the cab of his truck, and are two aspects of the same contention: That in taking that position he, of his own volition, put himself within the dangers from which his injury resulted; and, having done so, cannot recover for the injury as brought upon him by a wrong of the defendant. In so far as it is contended that merely by consciously taking the more dangerous of two possible positions a visitor assumes the risk of injury in that position from any cause, this court disagrees because the visitor might properly regard the position as attended with some dangers, yet not those from which injury comes to him, and might rightly be satisfied of his ability to cope with the former dangers, yet be justified in ignoring the other possible but unexpected dangers. He might be held bound to anticipate and so to assume dangers from operation in ordinary course, yet not to anticipate and assume the risk of rare casualties such as the derrick operator has described in this case, unless he occupies his position without the permission and contrary to the directions of the proprietor of the premises and the work. And in that connection, the evidence of the quarryman of his warnings and orders to the truck driver are to be considered.

The duty of the quarryman to exercise care looking to the safety of the visitor, the driver, could have been fulfilled, and the quarryman's own responsibility could at the same time have been limited, by restricting the driver to positions in which the risk of injury from casualties, even negligent casualties, might have been avoided. This may be clearer if it be supposed that the driver had shown a tendency to walk or stand under loads of stone as they were moved across the ground. The quarryman, with that situation before him, would have...