Kasten Const. Co. v. Evans

• Decision Date: 02 February 1971
• Docket Number: No. 209,209
• Citation: 260 Md. 536,273 A.2d 90
• Parties: The KASTEN CONSTRUCTION CO., Inc. v. Charles M. EVANS.
• Court: Maryland Court of Appeals

Page 536

260 Md. 536

273 A.2d 90

The KASTEN CONSTRUCTION CO., Inc. v. Charles M. EVANS.

No. 209.

Court of Appeals of Maryland.

Feb. 2, 1971.

James H. Langrall and John J. Ghingher, III, Baltimore (Weinberg & Green, Baltimore, on the brief), for appellant.

John Brockenbrough Fox, Baltimore (Frank J. Blair, Baltimore, on the brief), for appellee.

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

McWILLIAMS, Judge.

Had he not been young and quick and agile the extraordinary accident which befell the appellee (Evans) quite likely would have killed him. Even so he did not escape unscathed. For the injury he sustained Evans and his employer's insurer sued the appellant (Kasten) and the Baltimore Gas & Electric Company (BG&E). The jury absolved BG&E but found for Evans against Kasten. Charging the trial judge, Cardin, J., with assorted errors, Kasten entreats us to overturn the ensuing ($55,000) judgment. We shall relate what happened before stating the issues and our resolution of them.

In the early summer of 1964 BG&E engaged Windsor Electric Company (Windsor) to install its meters in the newly completed houses of Kasten's residential development in the Glen Burnie area of Anne Arundel County. Windsor was required also to connect the meters to BG&E's overhead distribution lines, already in place. Evans and one Ballard, employees of Windsor, worked together as a two man team. Both were experienced linemen. On 1 May 1964 they were given a work order directing them to install a meter at recently completed 373 Fleagle Road and connect it to the overhead line at pole number 359853. This was accomplished without incident. On 12 June they were directed to install a meter at 375 Fleagle Road and connect it to the overhead line at the same pole. When they had finished installing the meter and its appurtenances Evans climbed the pole. Upon reaching the top he set his safety belt and with his back to the house he began to pull the slack out of the 'loop' (the wire connecting the house to the overhead line). At the third pull the pole fell toward the house. Evans tried to get around to the 'high side' of the pole and to an extent he was successful; the pole did not crush him but it did fall on his right leg. As a result he was incapacitated for the better part of a year. On 12 November 1966 suit was filed in the Superior Court of Baltimore City. Some months later, upon the suggestion and affidavit of both defendants, the case was removed to the Baltimore City Court. Why this was thought to be a less hostile climate we fain would say, if we knew. Trial commenced on 9 December 1969 before Cardin, J., and a jury. Judge Cardin, after refusing to direct verdicts for Kasten and BG&E, submitted the case, with appropriate instructions, to the jury. Kasten's motion for judgment n. o. v. was denied whereupon it noted this appeal. Evans appealed from the judgment in favor of BG&E for costs but after the case reached this Court he dismissed his appeal.

The pole (359853), once a pine tree, was 30 feet long and because it had been treated with creosote it was known as a 'black-jack.' In accordance with the formula used by BG&E (0.10 height in feet 2 feet) it had been set in a hole 5 feet deep. It is customary for the maker of the pole to burn, with a branding iron, certain information on it; e. g., size, classification, etc. The brand is usually found about ten feet from the base of the pole. After the pole has been planted in the ground a BG&E employee is supposed to affix a white metal tag (9 1/2 3 1/4 ) on which is stamped the number of the pole. Usually the tag is placed at 'eye level.' While there is abundant evidence that it was the general practice of BG&E to affix these tags to its poles, there is no clear-cut evidence that one had been placed on this pole at any time before it fell.

William Wilkinson, the manager of the Electric Distribution Department of BG& E, testified that it was the practice of BG&E not to authorize the installation of poles in residential developments 'until the final grading has been done.' Normally, he said, it is required that the grading must have been finished 'to something (within) at least six inches * * * (of) the final grade' and, he added, 'we don't work until it has been done.' Lewis Russell was a member of the gang that set the pole. He said it 'was set five foot deep'; at the time 'there was no grading, * * * as far as (he) could see,' and the construction of houses had not begun. He said he did not place a tag on the pole because that was the duty of the foreman in charge of the line gang. Whatever the reason no one from the 'line gang' testified.

After the pole fell it was discovered that it had been in the ground to a depth of only 22 inches. This in turn led to the discovery that Kasten's grading operations had not been completed when the pole was set. Without notice either to BG&E or to Windsor, Kasten continued grading; in the end his men had bulldozed away three of the five feet of earth supporting the pole.

Kasten's main effort here is aimed at Judge Cardin's refusal to direct a verdict in its favor and his later denial of the motion for judgment n. o. v. Evans, argues Kasten, was contributorily negligent as a matter of law and if he was not, then, as a matter of law, he assumed the risk of injury. Kasten contends also that Judge Cardin fell into error by failing or refusing to instruct the jury in respect of the issue of assumption of the risk and by his failure to inquire into a conversation, during a recess, between counsel for Evans and a member of the jury.

I.

We shall deal first with the question whether Evans was contributorily negligent as a matter of law. To sustain this contention Kasten assumes that the identifying tag was in fact on the pole between two and three feet above eye level just before Evans started to climb. He concedes, however, as we think he must, that the 'testimony as to the presence of * * * (the tag and the brand ¹) is * * * conflicting.' But, seeking to impale Evans on one or the other horn of a dilemma, Kasten argues that even if the tag was not there, he was negligent in not observing its absence.

Contributory negligence is the failure to observe ordinary care for one's own safety. 'It is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances.' Potts v. Armour & Co., 183 Md. 483, 490, 39 A.2d 552, 556 (1944). In Tie Bar, Inc. v. Shartzer, 249 Md. 711, 715-716, 241 A.2d 582, 585 (1968), Judge Horney, for the Court, said:

'* * * (I)f the injured person knew or should have known of the dangerous situation there is no right of recovery.

'* * * Our predecessors * * * (noted) in Texas Co. v. W. B. & A. R. Co., * * * (147 Md. 167, 127 A. 752 (1925)) * * * that the real basis * * * (for) contributory negligence * * *

"arises from the failure of the plaintiff to use due care to avoid dangers which he knows from past experience exist on the premises to which he has been invited, or which he should know exist because of his knowledge of the character and kind of premises to which he has been invited, or because the dangers are so obvious that any ordinarily prudent man would see them and guard against them." (147 Md. at 174, 127 A. 752)

Contributory negligence, like assumption of risk, is ordinarily a question for the jury. Chalmers v. Willis, 247 Md. 379, 231 A.2d 70 (1967). Kasten, of course, claims that it should have been taken from the jury. We have often discussed the standards to be applied in reviewing a denial of a directed verdict motion.

'The familiar rule to be applied in determining whether the facts justify a holding that the plaintiff was guilty of contributory negligence as a matter of law is that the act (or omission) so relied on must be distinct, prominent and decisive, and one about which reasonable minds would not differ in declaring it to be negligence.' Miller v. Mullenix, 227 Md. 229, 232, 176 A.2d 203, 204 (1961).

To the same effect see Raff v. Acme Markets, Inc., 247 Md. 591, 600, 233 A.2d 786 (1967). If more than one inference can be drawn from facts in respect of the issue of contributory negligence, it must be submitted to the jury. Tie Bar, Inc. v. Shartzer, supra, 249 Md. at 716, 241 A.2d 582. There may also be a jury question, even where negligence seems fairly clear, 'when the facts permit a finding that the injured party's conduct had its basis in a reasonable expectation.' Bennett v. District Heights Apts., Inc., 252 Md. 655, 659, 251 A.2d 215, 218 (1969), quoting from 1 Shearman and Redfield, Negligence § 121 (rev. ed. 1941).

One horn of the dilemma, says Kasten, is that the tag, if present, is an infallible telltale showing how deep in the ground the pole has been set, that on the day the pole fell the tag would have been about nine feet above the ground, and that Evans's failure to heed its clear warning was contributory negligence as a matter of law. The other horn, he goes on to say, is that the absence of the tag should have warned Evans that a further investigation was in order and that his failure to take proper precautions for his own safety was likewise contributory negligence as a matter of law.

We do not think it is quite that neat. Both Evans and Ballard, the only linemen to testify, said, in effect, that Evans did what any experienced lineman would ordinarily have done in the circumstances. Each agreed that a high tag might indicate something was amiss but both said that looking for a tag was not a normal procedure to be followed before climbing and that nothing had ever been said about it during their training. Even the witnesses at the management level admitted that the tag was not intended as a depth marker. Evans said 'the number tag is sometimes put on the ground.' Evans said he did not notice a tag when he climbed the pole; he had...