McVey v. Gerrald

192 A. 789, 172 Md. 595, 1937 Md. LEXIS 268

• Court: Court of Appeals of Maryland
• Decided: June 16, 1937
• Docket: [No. 31, April Term, 1937.]
• Status: Published

Opinions

Parke, J.,

delivered the opinion of the Court.

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 twenty-seven 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 side piece of the ladder was nailed to the rafter. The rounds were held in place by insertion in holes in the upright side pieces 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 top piece 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 side piece above the square, but the other side piece 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 side piece and all the rounds, including the one on which he was standing, but to the side piece 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 side piece of a stationary ladder from its fastening cast upon the defendant the burden of exculpation, since the failure of the side piece 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 Co. 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.

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 side piece,

The ladder was built so as to use for one of its side pieces 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 side piece 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 that this upper section of the side piece was a poplar piece two by six inches, described as being the “tough” wood of an indigenous tree locally known as “hickory poplar.” After the rungs had been driven into the poplar side piece 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 side piece 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; Stewart & Co. v. Harman, 108 Md. 446, 451, 453, 70 A. 333; 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 upon him by reason of his relation to the servant in the course of the employment. The loosening and fall of the ripper side piece of the ladder is, on the testimony, as consistent (a) with it being caused by a sudden and careless lateral application by the servant of pull and body weight of such concentrated force as to produce a strain upon the loosed side piece which an ordinarily prudent master could not reasonably have anticipated in a servant’s use of the ladder; or (b) with a latent or hidden defect; or (c) with a failure of the master to use due care in providing a safe ladder. Baltimore City Pass. Ry. Co. v. Nugent, 86 Md. 349, 38 A. 779; Stewart & Co. v. Harman, 108 Md. 446, 451-453, 455, 70 A. 333; Consolidated Gas etc. Co. v. Chambers, 112 Md. 324, 331, 332, 75 A. 241; Maryland Telephone Co. v. Cloman, 97 Md. 620, 626-628, 55 A. 68 1; Washington Turnpike Co. v. Case, 80 Md. 36, 30 A. 571. So, in the absence of any question on the record at bar of improper or negligent construction, no inference of negligence can be drawn from the mere fact that the upper section of the side piece came loose under the pull of the servant, since the manner in which the section of the ladder came loose is, in causative sequence, as consistent either with the fault of the serv ant, or with a latent or hidden defect, as with the negligence of the master. The injury suffered did not, therefore, result from some condition or act of such a nature and so wrongful in quality as reasonably to exclude any inference except that of negligence on the part of the master in responsible control. Consequently, to assume negligence of the master from the mere parting and fall of the side piece is to substitute conjecture and choice in alternative inferences for proof of the precise thing which the plaintiff has undertaken, and is bound, to establish as a condition precedent to recovery. On this record, negligence is not to be inferred from the mere happening of the accident. Gans Salvage Co. v. Byrnes, 102 Md. 230, 245-248, 62 A. 155; Stewart & Co. v. Harman, 108 Md. 446, 455, 70 A. 333; Pillard v. Chesapeake S. S. Co., 124 Md. 468, 474, 475, 92 A. 1040. See Baltimore & O. R. Co. v. Wilson, 117 Md. 198, 212, 83 A. 248; State v. Coal Co., 150 Md. 429, 448, 449, 133 A. 601; Clough & Molloy v. Shilling, 149 Md. 189, 204-207, 131 A. 343; Restatement of Law of Agency, sec. 492 (c), (g), sec. 493 (e)-2.

There is no testimony on the record which tends to show that the latent defect in the ladder could have been avoided by care or discovered by reasonable examination. The master does not warrant the safety of the servant’s employment. He undertakes only that he will take all reasonable precautions to protect the servant against accidents. The argument is advanced that the master did not show that he had inspected the ladder. There are two replies to this contention. In the first place, if the failure to inspect is the breach of duty which was the cause of the accident, it must appear that the inspection would have disclosed to the master the defect or condition which caused the accident. So, if an inspection would not have revealed the defect, obviously a failure to inspect could not be the breach of duty that became the cause of the accident. The plaintiff, therefore, had the burden of producing affirmative testimony tending to show an inspection would have revealed to the master or his servants the cause of the accident. It was so expressly held in Buttner v. Steel Cur & Foundry Co., 101 Md. 168, 179, 60 A. 597, 599. At page 178 of the report of that case, it was said: “The general principles applicable to this case have been settled in this state and many others. While the facts are somewhat different here, the legal principles involved are the same which were applied in the case of South Baltimore Car Works v. Schaefer, 96 Md. 88, 53 A. 665. It was there held, as there was no evidence that the alleged defect could have been discovered by a proper inspection, nor any satisfactory proof as to what caused certain bolts to break, there could be no recovery. And it was expressly held in that case that the sudden and unexplained breaking of an appliance affords no presumption of negligence on the part of the employer. These general principles, as we have said, are well settled.” Restatement of the Law of Torts, sec. 365 (d) p. 992; Stewart & Co. v. Harman, 108 Md. 446, 453-455, 70 A. 333; South Baltimore Car Works v. Schaefer, 96 Md. 88, 107, 53 A. 665.

Again, in Maryland Telephone Company v. Cloman, 97 M. 620, at page 628, 55 A. 681, 684, the court stated the rule in this manner: “If it was possible to discover the defect by some customary method of inspection that was not used, then the plaintiff should have established that fact. As was s'aid in Schaefer’s case: Tt was the duty of the plaintiff, if he relied on failure to inspect, to have offered some testimony which would have justified the jury in finding that the defect causing the injury was one which could have been discovered by the usual and ordinary methods of inspection, commonly adopted by those in the same kind of business which was conducted by the defendant.’ ” See Consolidated Gas etc. Co. v. Chambers, 112 Md. 324, 336-338, 75 A. 241; Chesapeake Iron Works v. Hochschild Kohn & Co., 119 Md. 303, 311, 312, 315, 86 A. 345. See Nichols v. Pere Marquette R. Co., 145 Mich. 643, 108 N. W. 1016; Wonder v. Baltimore & O. R. Co., 32 Md. 411, 416; Simpson v. Pittsburgh Locomotive Works, 139 Pa. 245, 21 A. 386; Anderson v. Howe Scale Co., 90 Vt. 244, 97 A. 992.

A further consideration is that the extent and frequency of inspection depends upon the nature of the thing to be inspected, the danger to be anticipated if inspections are not made, and whatever other factors are involved in the determination of the reasonableness of conduct. It is quite clear that the duty varies greatly and that it may be satisfied by infrequent ones where the structure is permanent and does not deteriorate rapidly, and is not subject to much or wearing use. Restatement of the Law of Agency, vol. 2, sec. 503 (c) p. 1180.

The common bam ladder is of simple, open, and familiar make, and of durable material. While it is a usual and permanent fixture of a bam, its nature is not that of a dangerous instrumentality nor one whose liability to disrepair would require periodical or other particular examination of a ladder, which was apparently in good condition, for the special purpose of discovering whether any defects exist which may be a possible source of danger to the servants employed on the premises. Cole v. De Trafford (No. 2), [1918] 2 K. B. Div. 523, 532.

Here the ladder had been in use for a number of years and had been continuously found safe, secure, and serviceable. On the day before the accident, the master had used the ladder from the square to the rafter, and so had the plaintiff’s coemployees on the day of the accident. Their use was the best practical test and inspection of the sound and safe condition of the ladder. “This fact,” quoted the court in South Baltimore Car Works v. Schaefer, supra, from Stringham v. Hilton, 111 N. Y. 188, 197, 18 N. E. 870, “brings the case directly within the rule that, when an appliance or machine not obviously dangerous has been in daily use for a long time, and has uniformly proved adequate and safe, its use may be continued without imputation of negligence.” 96 Md. 88, at page 109, 58 A. 665, 668.

As a result of the application of established principles of law to the facts of the record at bar, the court is of the opinion that the plaintiff has failed to establish a cause of action, and the defendant’s prayer instructing the jury to that effect should have been granted. For the error in refusing to take the case from the jury, the judgment must be reversed.

Judgment reversed, without awarding a new trial, with costs to the appellant.