Maszczenski v. Myers

• Decision Date: 15 February 1957
• Docket Number: No. 57,57
• Citation: 212 Md. 346,129 A.2d 109
• Parties: Patricia MASZCZENSKI et al. v. J. William MYERS and Betty Brooks Myers, etc.
• Court: Maryland Court of Appeals

Page 346

212 Md. 346

129 A.2d 109

Patricia MASZCZENSKI et al. v. J. William MYERS and Betty Brooks Myers, etc.

No. 57.

Court of Appeals of Maryland.

Feb. 15, 1957.

James B. Murphy, Baltimore (Leroy W. Preston and Musgrave, Preston & Boyce, Baltimore, and John Thomas Welsh, Towson, on the brief), for appellants.

Phillips L. Goldsborough, III, Baltimore (Clark, Smith & Prendergast, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

COLLINS, Judge.

This is an appeal from a judgment for costs rendered in favor of the defendants, appellees, in an action brought by the plaintiffs, appellants, for injuries resulting from Patricia Maszczenski falling from a swing on defendants', appellees', playground.

Patricia, five years of age, was a paying pupil at the privately operated kindergarten and nursery, known as Pikesville Nursery and Kindergarten. About forty children were there enrolled, ranging in ages from three to five and one-half years. Mrs. Betty Brooks Myers, one of the appellees, owned the kindergarten and had been operating it twelve or thirteen years. The other appellee, J. William Myers, her husband, supervised the swings and other playground equipment on the kindergarten grounds, and chauffeured the children to and from the nursery. On the morning of June 4, 1953, while Patricia was swinging on one of the swings, she fell to the ground when the swing broke, resulting in injuries to her. The area under the swing was not completely smooth or completely rough. Mrs. Myers was present at the time she fell.

Mr. J. William Myers, called by the plaintiffs, appellants, testified that ten days or two weeks before the accident he checked the swings. 'When the links started to show wear, I replaced them, and it wasn't a matter of one showed it or a half a dozen, they were all replaced at one time. It was much easier to replace them all instead of having a couple of them on there that were worn worse than another one.

'Q. Well, on this particular occasion, you replaced one link, is that right? A. No, sir. I replaced--there is four, six swings out there. I replaced twelve links at the top, and the same at the bottom, wherever the links were wearing.

'Q. On this particular swing that Patricia fell from, did you replace more than one link? A. One on each side.

'Q. One on each side? A. That's right.

'Q. Then you replaced one link on each side in this particular chain from which Patricia fell? A. Yes, sir.' He put the links in at the top of the chain, the same type which were used at the bottom. The link he replaced was a 'spreader link'. It had no apparent defect and had nothing wrong with it as far as he could see. After he put in the new spreader link he tested the swing by hanging onto the bar at the top and dropping down on the seat of the swing. After he jumped on the seat he checked the link to see whether it was properly closed. He does not remember making any further inspection of the swing from that time until Patricia fell. He had had no particular training in connection with playground equipment. After Patricia fell he found that the link had broken at the top, which was at the end opposite to that which was spread apart when he purchased it. When asked how he knew the link broke, he stated: 'Well, it was open at the top. I don't know what else could have happened to it. * * * Before I left for the hospital, I had taken all the swings up, lapped them around the top of bar, and when I came back, I removed the swings, taken them down completely, and taken them apart, and went and bought other links to put back on there.' The link he replaced was a 'spreader link' and weight on the chain will close the spreader. 'If not, a pair of pliers or you can stand on it would bring it in close enough then that you get it started. Once it is started in, your weight will close it.' He does not remember just how he put it on but he knows that after he dropped on the seat the link was completely closed. He did not use a hammer to close it because it was closed. He did not keep the broken link and did not show it to his wife. He bought the new link at Caltriders where he bought all his equipment. He thinks he closed the link either with pliers or by pulling it. When he put the new link in it had no apparent defects and he closed it completely. The swings were originally purchased from the Parent Teachers Association in Pikesville. He had never seen a link open up after it was closed. The spreader portion of the link was closed tightly when he put it on. There was no wear apparent on it then. After the accident he removed similar links from all the chains and threw them away, including the broken one. He threw the broken link away because he had no reason to keep it. The swings were in constant use from the time he replaced the links, ten days before the accident, up until the time of the accident.

Mr. Edgar Howard, called by the appellants, plaintiffs, testified that he had studied engineering and had had general experience in mechanical engineering, and had occasion to deal with chains and metals generally. He was not an expert on swings. When a spreader link is used permanently it should be peened. When asked what peened meant, he replied: 'Relieving the internal stress so that it will not have a tendency to reopen after squeezed together. I have, in my pocket here, a little larger one which is easier to see. This is a half-inch one that probably will hold maybe four, five tons, and you can see if you squeeze that together, it wouldn't stay closed together. It is not like putty. It would have a tendency to reopen. Now, after it is closed together, it should be beaten on, and have the internal stresses relieved so that it wouldn't have any tendency to open up again.' He had, of course, never inspected the link in question here, and, of course, did not known whether it did in fact reopen. It would be good engineering practice to replace a link in a chain which had worn.

Mr. Hubert I. Snyder, the Director of Recreation in Baltimore County, called by the plaintiffs, appellants, testified that he was familiar with the construction and operation of playground equipment. He was not aware of any requirements or regulations in Baltimore County relating to the operation of swings on nursery school playgrounds. His department had no jurisdiction over private schools or private nursery schools. Over objection by the appellees, he testified concerning his regulations and practices as to the nature and construction of swing chains and the surface around them and said that in the public schools all playground leaders must inspect all playground equipment, including swings, daily if the playground is in operation. When asked whether he was familiar with the particular link of chain here in question, he replied: 'Well, all I know, it is another link that can be used as another link in a chain, whether it be a playground swing or an automobile chain. That is the extent of my knowledge of this particular link.'

Appellants claim that the doctrine or res ipsa loquitur applies in this case and that the trial judge erred in refusing to instruct the jury that the mere happening of the accident raised a presumption of negligence on the part of the appellees.

Mr. Myers was of course an adverse witness and when the plaintiffs called him they had the right to 'interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party.' Code 1951, Article 35, Section 8. However the plaintiff did not rebut Myers' testimony by adverse testimony and it stands on the record as an explanation of how the accident occurred. As to the effect of the production of the testimony of an adverse party and of the failure of the party introducing such evidence to rebut it, see Morris v. Hazlehurst, 30 Md. 362, 366; Mason v. Poulson, 43 Md. 161, 177; Murphy v. Stubblefield, 133 Md. 23, 30, 104 A. 259.

In speaking of the doctrine of res ipsa loquitur it was said by Judge Hammond in Coastal Tank Lines v. Carroll, 205 Md. 137, 145, 106 A.2d 98, 101: 'We think that 'the facts and the demands of justice' do not require that an inference be permitted to be drawn as a matter of right where all of the circumstances of the occurrence are shown by the testimony. Bohlen, in the work cited [Studies in the Law of Torts], at page 645, says: 'Where a presumption is recognized because the power of producing evidence is exclusively in the opponent of him who has the burden of persuasion, in so far as it is recognized for the purpose of relieving him of a burden which is impossible for him to successfully bear, that purpose is satisfied when his opponent produces evidence of what actually took place."

Chief Judge Sobeloff said in Hickory Transfer Co. v. Nezbed, 202 Md. 253, 262, 263, 96 A.2d 241, 245: 'When a vehicle leaves a highway and crashes into a building, or a pedestrian on a sidewalk, the injured party may show the happening of the event and rest. In lieu of direct proof of negligence he may rely on the inference of negligence to be deduced from all the circumstances. In such a case it is said 'the thing speaks for itself', or res ipsa loquitur. The burden of proof does not shift; but the defendant then has the obligation to go forward with his proof, which is sometimes called the risk of nonpersuasion. When the plaintiff invokes this procedure, thus putting his reliance upon the inference of negligence springing...