McVey v. Gerrald

• Decision Date: 16 June 1937
• Docket Number: 31.
• Parties: MCVEY v. GERRALD.
• Court: Maryland Court of Appeals

192 A. 789

172 Md. 595

MCVEY v. GERRALD.

No. 31.

Court of Appeals of Maryland

June 16, 1937

Appeal from Circuit Court, Caroline County; J. Owen Knotts and Thos J. Keating, Judges.

Action by Charles C. Gerrald against E. Wilmer McVey. From a judgment for plaintiff, defendant appeals.

Reversed.

OFFUTT and SHEHAN, JJ., dissenting.

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

Henry A. Warburton, of Elkton (William J. Rickards, of Denton, on the brief), for appellant.

J. De Weese Carter, of Denton (Joshua Clayton, of Elkton, and John I. Watson, of Oxford, Pa., on the brief), for appellee.

PARKE Judge.

The question on this appeal is whether the servant of a master who is a farmer, is entitled to recover for injuries sustained in the scope of his employment by a fall caused by a defect in a stationary ladder in the barn of his master.

The plaintiff was a laborer about 27 years of age, and the defendant was a farmer, who employed the laborer to help in hauling the farmer's wheat in the straw into the latter's bank-barn and put it away in the mow. The barn was large and the roof high. The loaded wagon was driven from the inclined way onto the barn floor between the two mows. Because of the height of the mows, an intermediate, temporary scaffold had been set up, and the wheat straw was forked from the wagon to the scaffold, where it was pitched into the mow and there placed and spread about the mow. Four men were engaged in this labor. On the second day of his service, the plaintiff fell and was badly hurt. At the time of his accident, the hauling and stowing away of the wheat straw had ceased, the mows were full, and the scaffold had been taken down.

There is testimony tending to prove these further facts. The defendant, while in the field a short time before midday, directed the plaintiff to close the upper barn windows and to get the pitchforks which had been left on the top of the wheat straw in one of the mows. To obey this command the plaintiff had to climb a stationary ladder which was one of two which had been built on either side of the entry between the mows at the time the barn was erected, about nineteen years before the master gave the order to his servant.

The ladder rose perpendicularly from the floor of the barn to its square, and was extended from that point to the roof where the sidepiece of the ladder was nailed to the rafter. The rounds were held in place by insertion in holes in the upright sidepieces of the ladder. The use of the ladder was going to and from the top of the mows when hay or wheat straw was stored there. The plaintiff had not used the ladder above the square of barn, but he had seen, on the day of his accident, his two fellow workers ascend and descend that portion of the ladder.

In obedience to his master's direction, the plaintiff climbed the ladder. He went beyond the square, and while he was climbing near the toppiece and holding on to the side, it pulled loose from the rafter, and the plaintiff fell backward and dropped to the barn floor, an estimated distance of some twenty-five feet, and carried with him the section of the sidepiece above the square, but the other sidepiece of the ladder was not at all affected and remained in position with every round of the ladder intact and in proper position. So, the plaintiff's opinion that "It wasn't substantial to hold me" could not apply to the sidepiece and all the rounds, including the one on which he was standing, but to the sidepiece of the ladder which he pulled loose from the rafter.

Since it was the duty of the master to exercise ordinary care to keep the premises where his servant was employed to work in a reasonably safe condition so that the servant, while in the course of his employment, may not be unduly exposed to danger, the loosening of the sidepiece of a stationary ladder from its fastening cast upon the defendant the burden of exculpation, since the failure of the sidepiece to stay fast was a defect in a fixture on the premises of the master, and in his possession and under his control at the time of the accident. Security Cement & Lime Company v. Bowers, 124 Md. 11, 16, 17, 91 A. 834; Westinghouse Electric & Mfg. Co. v. State, 129 Md. 59, 62, 98 A. 206; Winkelmann & Brown Co. v. Colladay, 88 Md. 78, 91, 40 A. 1078; Hearn v. Quillen, 94 Md. 39, 45, 50 A. 402; South Baltimore Car Works v. Schaefer, 96 Md. 88, 103, 104, 53 A. 665, 94 Am.St.Rep. 560.

The question then is whether the ladder was known to be defective, or, by the exercise of reasonable care might have been known to be defective by the master at the time of the occurrence of the injury to the plaintiff. There is no legally sufficient testimony which either directly or inferentially would tend to show that the master had any actual knowledge of any defect in the ladder.

The ladder was a permanent fixture. The evidence is undisputed that it was built out of sound and suitable material and in a careful, safe, and workmanlike manner by a competent carpenter on whose skill and judgment the owner of the premises was entitled to rely. From its installation it had been used in safety, year after year, for the purposes of its construction, and there is no testimony that there ever was any indication of any structural defect nor that the master ever had any intimation or reason to perceive or believe that there was any fault as to plan, mode of construction, or quality of material, or that the ladder could not be safely used for all the purposes for which it was designed.

Neither the use of the ladder nor its construction nor its maintenance was such as would call for a replacement of its parts or for periodic or frequent inspection. The ladder was under roof, where it was dry, and where there was no exposure to the weather. There is no testimony from which it could be inferred that any part of the ladder was affected by rot or deterioration. The affirmative testimony on the part of the plaintiff is that the entire piece, which was pulled loose, was in good condition. Every other part of the ladder remained in its place and was not affected by the separation and fall of the sidepiece.

The ladder was built so as to use for one of its sidepieces a post of oak, eight by eight inches, which rose eighteen feet to the square and then was reduced in size to six by eight inches and prolonged eight feet to the roof of the barn. At intervals of one foot holes had been bored to the depth of three inches, and into these holes iron rungs had been securely driven and tightly fastened. The opposite sidepiece of the ladder from the floor to the square was of oak into which corresponding holes had been bored to the depth of two inches, and the projecting ends of the rungs driven into these holes. Above the square, the ladder was similarly constructed, except this upper section of the sidepiece was a poplar piece two by six inches, and described as being the "tough" wood of an indigenous tree locally known as "hickory poplar." After the rungs had been driven into the poplar sidepiece the lower end at the square was fastened by nails, and at the top the side piece was cut out to the depth of two inches so as to fit under the bottom, and against the face of a rafter of the roof. The end of the piece was then nailed to the rafter by two twenty penny nails and a forty penny nail. The builder of the barn testified, and there is no evidence to the contrary, that the ladder was strongly built and properly constructed. Nor is there any testimony to support a finding that there existed rot, decay, or shrinkage in the wood or rust of nails or any other condition in the structure or material that existed at the happening of the accident and would have been discovered by the exercise of ordinary care and diligence on the part of the master.

The continuing and safe use of the ladder for the purposes for which it was installed for over eighteen years was a practical test and demonstration of there being no defect in its construction nor necessity for repair or alteration so far as was discoverable by reasonable care and diligence. The master had gone up and down the section of the ladder above the square on the day before the plaintiff was hurt without any defect developing. The plaintiff himself had used the ladder to get upon the scaffold at the level of the square of the barn, although he had not gone higher until his accident. He had, however, worked on the scaffold, whose level was about eight feet below the rafter where the ladder ended well within his view. He observed on the two days the plaintiff was hired by the master, the use of the ladder by the other servants who had gone up and down the section of the ladder above the square without an indication of any defect.

The parting of the sidepiece of the ladder was, therefore, the result of a latent defect, and, in the absence of any legally sufficient testimony tending to show that the defect either was the fault of the master or would have been discovered by the exercise of ordinary and reasonable care and diligence on his part the master is not, under all the circumstances, liable to respond in damages to the servant.

No one can be said to be negligent merely because he failed to make provision against a happening which he could not reasonably be expected to foresee. Wood v. Heiges, 83 Md. 257, 268, 269, 34 A. 872; Buttner v. Steel Car & Foundry Co., 101 Md. 168, 178, 179, 60 A. 597, 4 Ann.Cas. 761; Stewart & Co. v. Harman, 108 Md. 446, 451, 453, 70 A. 333, 20 L.R.A.(N.S.) 228; Joyce v. Flanigan, 111 Md. 481, 497-499, 74 A. 818.

The master is not an insurer of the servant's safety. If any liability attaches, it depends upon a breach by the master of some duty imposed...