Scott v. John H. Hampshire, Inc.

• Decision Date: 05 April 1967
• Docket Number: No. 117,117
• Citation: 246 Md. 171,227 A.2d 751
• Parties: Charles R. SCOTT v. JOHN H. HAMPSHIRE, INC.
• Court: Maryland Court of Appeals

Page 171

246 Md. 171

227 A.2d 751

Charles R. SCOTT v. JOHN H. HAMPSHIRE, INC.

No. 117.

Court of Appeals of Maryland.

April 5, 1967.

Martin E. Gerel, Washington, D. C. (Leonard J. Ralston, Jr., Washington, D. C., on the brief), for appellant.

Lansdale G. Sasscer, Jr., Upper Marlboro (Sasscer, Clagett, Powers & Channing, Upper Marlboro, on the brief), for appellee.

Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES and FINAN, JJ.

HORNEY, Judge.

In this case, where a workman was injured while attempting to avert injury to other workmen, the question is whether the lower court erred when it took the case from the jury. Charles R. Scott (Scott) is the plaintiff-appellant and John H. Hampshire, Inc., is the defendant-appellee. ¹

On the date of the accident, the plaintiff, who had been a structural ironworker for seven years and had previously operated a crane while he was a seabee in the United States Navy, ² was working for a contractor in the construction of a regional library in Prince George's County. On that day, while he was acting as a connector ³ on the roof of the building, he noticed that instead of a longer choker ⁴ a piece of chain attached to a steel cable for the purpose of lengthening it was being used as a choker in the unloading of steel from a truck with a crane. Concerned about what he had observed, the plaintiff came down from the building to warn nearby workmen of the dangerous situation. As he approached the truck, the crane was tipping out of its tracks because it was overloaded with bundles of steel decking (estimated as weighting from 4000 to 8000 pounds) that were being pushed off the truck to the ground. When the plaintiff arrived at the truck he said to everyone in the area 'stop what you are doing' for 'you are doing it unsafely' and then asked who was directing the operation. A workman standing on the truck and giving signals to the crane operator stated that he was in charge and that his employer was Hampshire. The bundles of steel, which were then on the ground, had a chain composed of one and a quarter inch links wrapped around them. When the supervisor was informed that the use of the chain to unload steel was dangerous and that someone was likely to get hurt, he stated that they would move it further on and stop. And as the steel was moved ahead, the chain broke and struck the plaintiff on his head and about his body while he was standing about twenty feet away. Hampshire, who was the roofing contractor, was the owner of the steel.

When the defendant moved for a directed verdict at the close of the case for the plaintiff, the trial judge, assuming the existence of primary negligence, ruled that the plaintiff had assumed the risk and was therefore guilty of contributing to the accident. In so ruling, the court was in error.

While there is a difference between an assumed risk and contributory negligence in that an assumed risk limplies an intentional exposure to a known danger whereas contributory negligence is the doing or failure to do something which directly contributes to the injury sustained, Burke v. Williams, 244 Md. 154, 223 A.2d 187 (1966) and Wiggins v. State, to use of Collins, 232 Md. 228, 192 A.2d 515 (1963), the distinction between the two is often difficult to draw and, as is the case here, is often without importance. Bull Steamship Lines v. Fisher, 196 Md. 519, 77 A.2d 142 (1950). So regardless of whether the defense was contributory negligence or assumption of risk, neither defense is applicable in this case where the conduct of the defendant appears to have created such a situations as to justify if not to compel the plaintiff to undergo the risk of being injured in order to warn others and avert their harm. People's Drug Stores v. Windham, 178 Md. 172, 12 A.2d 532 (1940); Restatement of Torts, § 893. Also see Green v. Standard Wholesale Phosphate and Acid Works, 29 F.2d 746 (D.Md.1928); Dunagan v. Appalachian Power Co., 11 F.2d 65 (4th Cir. 1926); Restatement of Torts 2nd, § 472.

This Court, in recognizing the principle that it is commendable to save life, has consistently held that a person who endeavors to avert the consequences of the negligence of another person, by an act which is dangerous but not reckless, is not precluded from recovering damages for injury suffered as a consequence of having interposed. Maryland Steel Co., etc. v. Marney, 88 Md. 482, 42 A. 60, 42 L.R.A. 842 (1898); American Express Co. v. Terry, 126 Md. 254, 94 A. 1026 (1915); State to Use of Dove v. Mayor & C. C. of Baltimore, 141 Md. 344, 118 A. 753 (1922); Lashley v. Dawson, 162 Md. 549, 160 A. 738 (1932). In Marney it was said (88 Md. at p. 498, 42 A. at p. 66) that the 'law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness.' The same statement of law was cited with approval in Terry and Dove. And in Lashley it was also said (162 Md. at p. 564, 160 A. at p. 744) that 'the law measures acts done under the spur and stress of sudden emergencies * * *, when done for the purpose of averting serious or even fatal consequences to others, with more indulgence than when they are impelled by no such motive.' In a case such as this, the incurring of danger was not negligence per se and the question of whether the giving of the warning was justified is ordinarily one for the jury to decide. State to Use of Dove v. Mayor & C. C. of Baltimore, supra.

Although the trial court, in ruling on the motion for a directed verdict, assumed the existence of primary negligence, we think there was sufficient evidence in the record to support an inference, if not proof, that the defendant was negligent. That it may have been unsafe, as the...