Bauman v. Woodfield

Marbury, J., delivered the opinion of the Court. Leonard C. Bauman, an infant, by Carl M. Bauman his father and next friend, and Carl M. Bauman, individually, brought ²¹³ a tort action against Bradley M. Woodfield and Henry H. Woodfield, individually and trading as B. M. Woodfield & Son, and against Joseph P. Dorr and Ann C. Dorr, landowners. Trial was held before a jury, Judge Ralph G. Shure presiding, in the Circuit Court for Montgomery County. The trial judge directed a verdict in favor of the Dorrs, defendants-appellees, at the conclusion of the plaintiffs-appellants’ (Baumans’) case and denied a motion for a directed verdict on behalf of the defendants-appellees Woodfield, made at the conclusion of the plaintiffs’ case and at the close of all of the evidence.

From the judgments entered for the defendants as the result of the granting of the motion for directed verdict in favor of the Dorrs and the verdict of the jury in favor of the Woodfields, the appellants have taken this appeal claiming error in granting the motion and other errors allegedly committed during the trial. Mr. Carl M. Bauman, the father of Leonard, owned a 300 acre farm in Frederick County, Maryland, and 22 acres of land near Burtonsville in Montgomery County, Maryland, on which he and his family lived and farmed. In 1958, approximately two years prior to the accident in which Leonard sustained injury, his father purchased a used 1950 model 8N Ford farm tractor from the Woodfields who operated a Ford dealership at Damascus, Maryland. At the time of the purchase the father, accompanied by his son, bought the tractor with the understanding that the son, then nearly fifteen years old, would use it since it was a common practice for boys who lived and worked on farms to operate tractors.

All this was made known to the Woodfields. The tractor was purchased with a drawbar and a mower. Before the purchase was made, the tractor, with the mower attached, was demonstrated in action to the father and the son on a small plot of ground near the dealership. Both father and son were instructed in the maintenance of the tractor and on how to attach and unattach the mower and drawbar.

The son asked a number of questions. This was the extent of the instructions. The father requested a manual which usually comes with new tractors, but the Woodfields did not have one for that tractor since it was used. Llowever, they promised they would try to obtain one but never furnished it.

After the purchase but before the accident, the father made several fruit ²¹⁴ less requests for the manual when he was in the vicinity of the dealership. Finally, the father obtained one directly from the manufacturer just before the trial, which was held nearly four years after the accident. The tractor was purchased primarily for use on the Frederick County farm, and the minor, Leonard, operated it there on occasions. Leonard had had some previous experience in driving a Farmall cub tractor which his father also owned.

The senior Bauman gave Leonard some instructions on the use of the Ford tractor and permitted him to operate it after a few months. Later, when the Ford tractor was brought to the Burtonsville farm, Leonard used it in mowing, plowing, and other general work for neighbors to earn income during his free time from school. He had been doing work for other people with the tractor over a period of a year and a half before the accident. He was paid by the hour, kept his own time, and set his own hours.

When he used the father’s tractor he charged an extra amount for its use and supplied the gasoline. When Leonard was injured on August 18, 1960, he was pulling old fence posts out of the ground with the Ford tractor for Mr. Dorr. He had worked for him on previous occasions and had used the Ford tractor and Mr. Dorr’s small cub tractor several times. Sometimes Mr. Dorr, who was primarily in the manufacturing business and raised ponies on the side, worked with Leonard while Leonard was working for him.

Mr. Dorr, feeling that his small tractor was not sufficiently powerful, engaged Leonard to bring his father’s Ford tractor for the purpose of removing an old fence. He pointed out where the fence was and what was to be done with respect to its removal. The fence was located over a hill, completely out of sight of the Dorrs’ house and some distance from it. Leonard worked unaccompanied.

On the first day of pulling out the fence posts a steel cable supplied by Mr. Dorr broke and caused Leonard thereafter to keep watch over his shoulder for the cable when pulling in order to avoid whiplash from the cable if it should break again. He began to extract the posts by first burning off the undergrowth with gasoline, then he would nudge a post to be removed with the tractor if it needed loosening. Finally, he would wrap or tie one end of the cable ²¹⁵ to the post and the other end to the rear of the tractor and pull out the post. When the accident occurred the cable was attached to the top link, a part of the hydraulic system located on the central housing behind and below the driver’s seat, or to the axle itself.

The evidence was not very clear on this point. In any event, this particular use of the tractor—pulling with the cable attached to the upper part of the tractor—was unsafe because the center of gravity was too high thus causing the front end of the tractor to rise and overturn. When he was injured, Leonard was not using the drawbar. The drawbar, which is used for towing and pulling, is designed to keep the center of gravity low thus preventing the front end of the tractor from rising.

Both Leonard and his father testified that neither knew the safety function of the drawbar other than as an attachment for towing and pulling. By noon of the second day he had extracted nearly two-thirds of the posts. He was working on his second or third post after lunch when, because the cable was attached to such a high point on the tractor and the post failed to come out of the ground, the resistance from the post caused the front end of the tractor to rise off of the ground and to rotate about the rear axle so that the tractor completely turned over on top of Leonard pinning him to the ground and injuring him seriously. Leonard, who had been watching the cable, sensed the front end rise.

When he looked around and saw the front end off the ground, he instinctively reached with his foot for the clutch to disengage the gears but his foot slipped off. The tractor continued to pull against the post and finally turned over. At the time of the accident Leonard was sixteen and one-half years old. TUB CASH AGAINST THE DORRS The plaintiffs contend that the lower court did not understand the nature of Leonard Bauman’s employment, 1 and that the ²¹⁶ evidence presented against the Dorrs at the conclusion of the plaintiffs’ case was sufficient to create a prima facie case of negligence.

In their brief the plaintiffs Bauman argued that if Leonard was an independent contractor the duty owed to him by the Dorrs was entirely different than if there was a master-servant relationship. It is axiomatic that actionable negligence is the breach of a duty that is owed to another. If no duty is owed, then no action can be sustained even though an injury has occurred. Hettchen v. Chipman, 87 Md. 729 , 41 Atl. 65 .

In order that an act or omission may be regarded as negligent, the person accused of negligence must have known or should have known that danger was involved in such act or omission or that the instrumentality or property causing the injury was in some way defective or dangerous. Adams v. Carey, 172 Md. 173 , 190 Atl. 815 . It is the general rule that the servant holds himself out as being capable of doing the work he undertakes to do, and that he assumes the risk incident to the employment. Hockaday v. Schloer, 125 Md. 677 , 94 Atl. 526 ; Crown Cork Co. v. O'Leary, 108 Md. 463 , 69 Atl. 1068 ; Buttner v. Steel Car Co., 101 Md. 168 , 60 Atl. 597 .

However, it is the affirmative duty of an employer in a master-servant relationship to provide his employee with a reasonably safe place in which to work and to warn and instruct his employee concerning the dangers of the work known to him which are not obvious and can not be discovered by the exercise of reasonable care by the employee. This duty is relative and conditional, and what would be a full discharge of the duty under one set of circumstances may not be under another. The duty to warn or instruct depends upon the age, understanding, and experience of the employee and upon the nature of the work. Where the employee, by reason of his youthfulness or inexpeidence, is unable to comprehend the dangers of the work or where the dangers are of such nature as to give reasonable grounds for believing that they are not known to such employee or would not be discovered after a reasonable time, and they are actually or constructively known to the employer, the failure of the employer to warn the employee is a breach of his duty.

Royster Guano Co. v. State, 130 Md. 170 , 100 Atl. 104 ; Booth Packing Co. v. Greuner, 129 Md. ²¹⁷ 392, 99 Atl. 714 ; Hettchen v. Chipman, supra; Michael v. Stanley, 75 Md. 464 , 23 Atl. 1094 . The contractee has a similar duty to warn an independent contractor of dangerous working conditions about which the contractee actually or constructively knows and the contractor could not reasonably discover. In Le Vonas v. Acme Paper Board Co., 184 Md. 16, 19-20 , 40 A. 2d 43 , where suit was brought by employees of an independent contractor to recover for injuries alleged to have been caused by the failure of the contractee to warn plaintiffs that electrical wires were dangerous, this Court affirmed the directed verdict for the defendant and approved this rule as follows: “In 1869 Judge Alvey announced the general rule in Deford v. State, to Use of Keyser, 30 Md. 179, 205 , that a property owner must exercise care that his property is so used and managed, whether by his own servants or by an independent contractor, that the mode of conducting his work will not cause injury to servants or other persons. But the property owner who invites other persons to come upon his premises is not an insurer of those persons against every possible accident.

He must exercise merely such care as a reasonably careful and prudent person would exercise to guard against dangers under the circumstances so as to make the premises reasonably safe. He will not be held liable for injuries resulting from dangers which are as obvious or familiar to the person injured as to him. It is only when there is some concealed peril, known to the owner but not known to the person injured, which he has failed to warn against, that he will be held responsible.” In the case before us as to the Dorrs, plaintiff Leonard Bauman had nearly two years of experience with his father’s Ford tractor on his father’s farms and elsewhere. The boy had previously mowed, plowed, and towed with his tractor, had used the drawbar on several of these occasions, and, in fact, knew how to rig and to unrig it.

He had also had experience with smaller tractors. He advertised his services by word of mouth ²¹⁸ and held himself out as being capable of doing the work he undertook to do. When he orally contracted to remove the fence posts for Mr. Dorr, he gave no indication that he had never done this type of work nor that he did not know the proper use of the tractor for pulling with a cable. He testified at the trial that he had never been instructed on what to do if the tractor’s front end raised off the ground, yet at the time of the accident when he saw the front end of the tractor rising, he knew enough instinctively to try to disengage the gears by depressing the clutch pedal.

In contrast to the amount of evidence concerning Leonard Bauman’s experience with farm tractors, there was no sufficient evidence to show that the Dorrs had any superior knowledge regarding the use of the tractor, or any knowledge of the correct manner of pulling fence posts out of the ground with a tractor, or knowledge that Leonard Bauman might do so in an improper manner. Mr. Dorr was in the manufacturing business and his wife was a housewife. Together they raised ponies on their 28 acres. We hold that in light of Leonard Bauman’s experience with tractors and his holding himself out as capable of performing the work, the Dorrs, who had no reason to question his capabilities or his experience concerning the use of the tractor, had no duty to warn or supervise him under either a master-servant or contractee-independent contractor theory.

Therefore, under either theory the court below was correct in granting the Dorrs’ motion for a directed verdict. Appellants also contend that the lower court, by granting a directed verdict for the defendants Dorr at the close of the plaintiffs’ case thereby adversely affecting their case against the defendants Woodfield in the eyes of the jury, erred in not reserving its decision under Maryland Rule 552 c. Appellants have shown no prejudice. In negligence cases, it is incumbent upon the plaintiff to produce some evidence that the defendant violated some duty by his act or omission and thereby caused the injury.

Brehm v. Lorenz, 206 Md. 500 , 112 A. 2d 475 ; Sullivan v. Simth, 123 Md. 546 , 91 Atl. 456 . Since the