Summary
permitting former naval construction worker to offer lay opinion as to safety of various methods of crane operation, based on prior experiences and observations in the operation of cranes
Summary of this case from Ragland v. StateOpinion
[No. 117, September Term, 1966.]
Decided April 5, 1967.
NEGLIGENCE — Defenses — Distinction Between Contributory Negligence And Assumption of Risk Is That The Former Directly Contributes To The Injury Sustained While The Latter Implies An Intentional Exposure To A Known Danger — Distinction Is Difficult To Draw And Is Without Importance In This Case. p. 175
NEGLIGENCE — Defenses — Neither Contributory Negligence Nor Assumption Of Risk Is Available As A Defense Where Conduct Of Defendant Justifies Plaintiff In Undergoing Risk Of Being Injured In Order To Warn Others And Avert Their Harm. The plaintiff, an ironworker, was engaged in work on the roof of a building. While so engaged, he observed that a crane operated by the roofing contractor on the job was being improperly operated in that a piece of chain instead of a stronger cable was being used to lengthen the cable on the crane, which was engaged in unloading bundles of steel from a truck. The plaintiff also observed that the crane was being overloaded with bundles of steel, causing it to tip out of its tracks. Plaintiff descended, and, on arriving at the truck, warned the workman in charge for the roofing contractor of the unsafe condition. The supervisor stated that in view of the unsafe condition, the steel on the crane would be moved on further and the operation would then stop. As the steel was moved ahead, the chain broke and struck the plaintiff, who was standing about twenty feet away. The trial court granted a directed verdict for the defendant on the basis that appellant's conduct amounted to contributory negligence or assumption of risk. The Court of Appeals, reversing, held that the defenses of contributory negligence and assumption of risk were not available where the defendant's negligence justified the plaintiff in undergoing the risk of injury in order to warn others. p. 175
NEGLIGENCE — Not Imputed To One Engaged In Endeavoring To Preserve Human Life, Unless Effort To Preserve Life Is Reckless And Not Merely Dangerous — Acts Done Under Spur Of Emergencies Are Treated With Indulgence — Incurring Of Danger Presents Jury Question Here. pp. 175-176
NEGLIGENCE — Facts That Chain Broke When Next Used After Plaintiff's Warning And That Defendant's Supervisor Acknowledged That Chain Was Unsafe Were Sufficient In Themselves To Support An Inference Of Primary Negligence. p. 176
EVIDENCE — Expert Witness — "Seabee" Experienced In The Operation Of Cranes Was Probably Qualified As An Expert Witness On Their Safety — Witness Who By Study Or Experience Has Acquired Knowledge Of Particular Subject Not Within Ken Of An Ordinary Person Is Qualified As An Expert Witness To Give Opinion Testimony. pp. 176-177
EVIDENCE — Opinion Evidence — Realization Of Danger — Nonexpert Witness Qualified By Observation And Experience May In Some Circumstances Be Permitted To Testify As To Realization Of Danger. p. 177
G.W.L.
Decided April 5, 1967.
Appeal from the Circuit Court for Prince George's County (BOWIE, J.).
Charles R. Scott instituted a suit for personal injuries against John H. Hampshire, Inc. From a judgment for defendant entered upon a directed verdict at the close of the plaintiff's case, the plaintiff appeals.
Judgment reversed, and case remanded for a new trial; appellee to pay the costs.
The cause was argued before HAMMOND, C.J., and HORNEY, MARBURY, BARNES and FINAN, JJ.
Martin E. Gerel, with whom was Leonard J. Ralston, Jr. on the brief, for appellant.
Lansdale G. Sasscer, Jr., with whom were Sasscer, Clagett, Powers Channing on the brief, for appellee.
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.
The suit for personal injuries brought by Charles R. Scott against John H. Hampshire, Inc., and other defendants, subsequently interpleaded by Hampshire as third parties defendant, was dismissed at the trial by Scott as to all of the defendants but Hampshire, leaving only Hampshire as a defendant to the action filed by Scott and leaving Permanent Builders Company, Robert H. Jackson, Roy Hays, and George's Transfer and Rigging Company, Inc., third party defendants, as to the third party claim of Hampshire.
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, 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 on the roof of the building, he noticed that instead of a longer choker 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 weighing 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 the 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.
As a seabee the plaintiff was a member of a construction battalion in the civil engineer corps of the Navy and helped to build and defend naval installations and aviation facilities.
A connector is one who assembles steel as it is raised by a crane from the ground to a structure.
A choker is a piece of steel cable of varying lengths with an eye at each end which is stronger than a link chain.
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 implies 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 Wiggin v. State 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 situation 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. 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. v. Marney, 88 Md. 482, 42 A. 60 (1898); American Express Co. v. Terry, 126 Md. 254, 94 A. 1026 (1915); State use of Dove v. M. 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 (at p. 498) 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 (at p. 564) 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 use of Dove v. M. 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 plaintiff thought, to use a chain instead of a cable as a choker was supported by the fact that the chain broke the next time the bundles of steel were moved and injured the plaintiff. Further, the decision of the supervisor to resume or continue to use the cable spliced with a chain to move the steel a little further on before stopping, after he had been informed or reminded that the use of the chain was dangerous, seems to support an inference that, although the supervisor was convinced or already knew that the continued use of the chain was unsafe, he was determined to take a chance on the chain not breaking.
With further reference to the testimony of the plaintiff, who, over objection, was allowed to give his opinion that it was safer to use a cable rather than a chain as a choker, we see no reason for precluding him from stating that a chain should not have been used in unloading steel from a truck with a crane. As a seabee in the Navy, the witness had not only learned that the unloading of steel with a chain instead of a cable as a choker was unsafe, but also had operated a crane in the building of naval installations and aviation facilities. It is probable therefore that the plaintiff could be considered qualified to testify as an expert witness. As a general rule, a witness who in studying or by experience has acquired knowledge of a particular subject or activity — not within the ken of an ordinary person — is considered to be an expert witness and as such is qualified to give an opinion as to the matter of his expertise. See Rotwein v. Bogart, 227 Md. 434, 437, 177 A.2d 258 (1962); Williams v. Dawidowicz, 209 Md. 77, 85, 120 A.2d 399 (1956); Penn., etc., Casualty Ins. Co. v. Messenger, 181 Md. 295, 298, 29 A.2d 653 (1943). See also Hewitt v. Board of Censors, 243 Md. 574, 221 A.2d 894 (1966); State Health Department v. Walker, 238 Md. 512, 209 A.2d 555 (1965); 32 C.J.S. Evidence § 456; 20 Am.Jur. Evidence § 775 et seq. However, even if we assume that he was not an expert, there is little doubt that his experience and observations with regard to the use of cables instead of chains at least qualified him to give an admissible lay or nonexpert opinion. In some circumstances, an ordinary nonexpert witness qualified by observation and experience may be permitted to testify with respect to such matters as the realization of danger. See the cases cited in 10 M.L.E. Evidence § 243, nn. 24-27; C.J.S. op.cit. § 546 (59) a; Haynes v. Bernhard, 268 S.W. 509 (Tex.Civ.App. 1925).
Judgment reversed and case remanded for a new trial; appellee to pay the costs.