Burke v. Williams

Hornby, J., delivered the opinion of the Court. In this action to recover damages for the injuries Rannie Alvin Burke sustained when he fell into an excavation under a board walkway leading into the partially constructed house that James E. Williams, a general contractor, was building for himself and wife in Oxon Hill, the Circuit Court for Prince George’s County directed a verdict for the defendants at the conclusion of the case for the plaintiff. The granting of the motion, from which the appeal was taken, was based on the premise that the plaintiff failed to show that the defendants were guilty of primary negligence, and, assuming a showing of negligence, that the plaintiff was contributorily negligent or had voluntarily assumed a known risk. The facts are not in controversy.

The accident occurred while the plaintiff was making a delivery of kitchen sink tops. The only entrance to the house was over a walkway made by fastening two ten or twelve foot boards at both ends, side by side an inch apart and on an incline of about thirty degrees. On arriving at the house, the owner, because there was no other way to enter, informed the plaintiff and his brother, who was helping him, that they would have to carry the sink tops up the boards through the carport to the kitchen. The largest top was carried in first by both men.

Thereafter, the brother went back and took in a smaller top alone. Subsequently, as the plaintiff ¹⁵⁷ came out of the house to get another smaller top and the delivery ticket, he slipped and fell into the excavation and was injured. Upon getting out, he took the remaining top into the house and obtained the signature of the owner on the delivery ticket. At the trial, there was testimony to the effect that the boards, though previously cleared of snow which had fallen several days before, were slippery because of mud and slush from melting snow, as well as testimony that the boards had a tendency to give and bob up and down when stepped on, but there was no showing that the boards were broken or had slipped or were otherwise defective.

Nor did the plaintiff complain about the condition of the walkway at any time. There was also other evidence to the effect that the means provided by the owners for entering a house under construction was the one commonly used by other contractors and was considered proper. On appeal, the appellant contends that there was sufficient evidence of primary negligence to take the case to the jury and that he had neither contributed to the accident nor assumed the risk of being injured. The appellees, on the other hand, besides claiming that no primary negligence was shown, argued that the plaintiff was guilty of contributory negligence or assumption of risk.

As we see it, it is not necessary for us to decide whether or not the case should have been submitted to the jury on the issue of primary negligence for even assuming there was primary negligence, it is clear