Southern Maryland Elec. Co-op. v. Blanchard

• Decision Date: 14 July 1965
• Docket Number: No. 227,227
• Citation: 239 Md. 481,212 A.2d 301
• Court: Maryland Court of Appeals
• Parties: SOUTHERN MARYLAND ELECTRIC COOPERATIVE, Inc. v. Rudolph W. BLANCHARD.

Page 481

239 Md. 481

212 A.2d 301

SOUTHERN MARYLAND ELECTRIC COOPERATIVE, Inc. v. Rudolph W. BLANCHARD.

No. 227.

Court of Appeals of Maryland.

July 14, 1965.

John A. Beck, Bethesda (Robert E. Wigginton, Leonardtown, on the brief), for appellant.

Ferdinand J. Mack, Rockville (Arthur J. Hilland and James E. Hogan, Rockville, and Paul J. Bailey, Leonardtown, on the brief), for appellee.

Argued March 3, 1965, Before PRESCOTT, C. J., and HORNEY, SYBERT, OPPENHEIMER and BARNES, JJ.

Reargued June 2, 1965, Before PRESCOTT, C. J., and HAMMOND,

HORNEY, MARBURY, SYBERT, OPPENHEIMER and BARNES, JJ.

PRESCOTT, Chief Judge.

In this tort action brought by Rudolph W. Blanchard (plaintiff-appellee) against the Southern Maryland Electric Cooperative, Inc. (defendant-appellant) for the injuries he sustained when a television antenna he was holding came in contact with an uninsulated electric wire belonging to the co-operative, the jury found for the plaintiff in the sum of $25,000 and the defendant appealed from the judgment entered on the verdict.

Several questions are raised, but, in the view we take of the case, only oen needs to be answered: Was the appellee guilty of contributory negligence as a matter of law?

On January 4, 1963, the plaintiff, an intelligent signalman in the United States Navy with unimpaired vision, rented a trailer in Hood's Trailer Park in St. Mary's County. While living in the rented trailer, he purchased a new trailer from the owner of the park. This new trailer was delivered during the latter part of January, and it was placed in the same row of trailers as the one then being occupied by the plaintiff. Shortly thereafter, he and his family moved into the new one. On or about February 7, 1963, just a couple of days before his accident, the plaintiff obtained a 4" by 4" aluminum pole, 16' in length, and borrowed a post hole digger from Mr. Hood, who operated a service station and general store adjacent to the trailer park. Plaintiff dug a hole 3' deep and erected the pole at the rear of the trailer in order to run a telephone line into his bedroom window. After being placed in the ground, the pole stood approximately 13' 14" in height, and it was approximately 2' from the rear of the trailer. The top of the pole was about 3' above the top of the trailer, which was 10' from the ground. Plaintiff testified that he arrived home about 5:00 p.m. on the day he erected this pole. Arranging to have Hood obtain the pole, taking the pole from the store to his trailer, and going to Hood's garbage shed and his barn to obtain the necessary tools required several trips to and from his trailer to Hood's store and its vicinity. The whole operation of erecting the pole consumed some 30 to 40 minutes. During this time, plaintiff was working almost immediately under the wire which caused his injury.

This wire was 22 1/2' above the ground. Four feet below it was a neutral, or ground, wire. These wires ran athwart the top of the trailer at a point some 18" inside the rear thereof. Below these wires were other electric ones close to the top of the trailer, which were insulated. The latter are not involved in this suit. The wires had been placed there several years before upon the establishment of the trailer park, and had remained there, in plain, unobscured view, ever since.

On the morning of February 9, 1963, the plaintiff purchased a new television set. During the early afternoon, he went to Hood's general store and purchased a metal antenna kit. Thereafter, he borrowed a 16' aluminum ladder and sufficient tools (all of which he personally carried to the rear of the trailer) to assemble and install the antenna. These operations required a 'few' trips to and from the trailer to the store and tool sheds. He assembled the antenna on the ground near the base of the telephone pole, almost directly under the wire from which he received his injury. When assembled, the antenna top consisted of two sets of prongs measuring approximately 3' 8 1/2" each in length. The antenna top was attached to a metal pole 10' 1 1/2" long. The plaintiff then attached metal brackets near the top of his telephone pole to hold the metal pole of the television antenna.

Plaintiff had leaned the 16' ladder against the rear of the trailer, and, after assembling the antenna, he grasped it near the bottom of the metal pole and started backing (or 'sidling') up the ladder. He intended to insert the lower end of the antenna pole into the bracket at the top of the telephone pole. In ascending the ladder he noticed the several insulated wires running over the top and near the rear of his trailer and said he took precautions to avoid them. When his hands were at a level near the top of the 13' telephone pole, he swung the 10' metal antenna pole upward for the purpose of inserting the end into the top bracket on the telephone pole. During this maneuver one of the prongs at the top of the antenna came into contact with the defendant's electric wire, and resulted in the injuries complained of. There were no witnesses to the accident.

Plaintiff testified that at no time during his over-a-month's residency at the trailer part, which included the time of the installation of the telephone pole and the assembly and attempted erection of the antenna, did he ever see, or become aware of the wire which caused his injury. He was, however, fully aware of the dangers of electricity and electric wires; and had received extensive training in the use of his eyes as a signalman.

In attempting to explain his not seeing the wire, the plaintiff testified that during his residency at the trailer park he had usually left for work early in the morning and returned therefrom rather late; that the weather had not been conducive to exploration; and that he had been confined to his trailer by the flu for about two weeks and had not been able to assist in the moving from one trailer to the other.

Much stress is laid in appellees' brief upon the sun's preventing his seeing the wire, and a minority of this Court feels that this factor is the one which should take the question of contributory negligence to the jury; hence it seems appropriate to set forth all of appellee's testimony relative thereto. He stated that the accident occurred at about 3:00 p.m. on a Saturday afternoon, when the weather was 'cloudy, broken clouds.' Later he said he sun was out because he remembered 'it glaring into my eyes when I first [italics added] looked up in that direction [towards the wires],' and the 'sun was shining off and on.' Thereafter he admitted: 'I didn't look straight up [when he was ascending the ladder--almost straight up was where the wire was]. I had no reason to look straight up. I was interested in the top of the pole [upon which he intended to place the antenna].' He further testified as follows: '[When ascending the ladder] all I had my eyes on was this pole here with the brackets on it because I had to figure out how far up the ladder I had to go in order to get the [antenna] pole in the bracket.' And when asked the question, 'You were not looking at the sun [as you climbed the ladder and got ready to insert the antenna], were you?,' he flatly replied, 'Not at that time, no sir.' Further he stated that in his pre-trial deposition, although he had testified 'describing what [he] did and what happened [at the time of the accident],' he did not 'mention the sun or mention the sun getting in [his] eyes.'

For the purposes of this case, we assume, without deciding, that the defendant was guilty of primary negligence, and proceed to a consideration of whether the evidence established that plaintiff was guilty of contributory negligence as a matter of law. We are constrained to hold that our previous decisions, as well as the authorities elsewhere, impel a ruling that he was.

It may readily be conceded that as a general rule the questions of primary and contributory negligence are for the jury (there are innumerable Maryland cases to this effect). However, there is a qualification to this general rule which is as well known as the rule itself; namely, that in certain cases the facts establish that a defendant has been guilty of negligence, or a plaintiff has been guilty of contributory negligence, as a matter of law. There are likewise many Maryland cases to this effect. See for example the Annotation in 69 A.L.R.2d 9, § 15(a) and (d), and § 23, where most of the Maryland cases dealing with power line injuries mentioned below are annotated.

Although there is much sound and widely-recognized authority for the proposition that a person of ordinary intelligence, with unimpaired eyesight, who says that he did not see an object which, had he used his senses, he, in the nature of things, must have seen, is not to be credited (for example, see Fulton Building Co. v. Stichel, 135 Md. 542, 109 A. 434), we do not need to rest our decision here upon that proposition, for, irrespective of whether plaintiff had actual knowledge of the presence of the wire, the law, under the circumstances here involved, charged him with such knowledge.

It is a fundamental principle of negligence law that a person must use his Providence-given senses to avoid injury to himself. This has been recognized since time immemorial. In the case of Fulton Building Co. v. Stichel, supra, Chief Judge Boyd, for the Court, said:

'If he had used his eyes * * * he could have seen the spikes * * *. * * * He says he did not see any spike but according to the principles announced by the authorities in this State, as well as elsewhere, as there is nothing to show that his sight is impaired, or he was not a man of ordinary intelligence, he cannot avoid the effect of his contributory negligence by saying he did not see an object which, if he had used his senses, he in the nature of things must have seen, and he cannot be credited when he says he did not see it. Helms' Case, 84 Md. 515, 526, 36 Atl. 119, 36 L.R.A....