Gunther v. Smith

KARWACKI, Judge. Stanley Gunther and his 18 month old son, Robert, were injured when they were accidentally thrown from a horse-drawn wagon being operated by the appellee, James Smith. The complaint filed by Stanley Gunther and Eileen Gunther, his wife, against appellee and others in the Circuit Court for Montgomery County to recover damages for those injuries alleged that appellee’s negligence in operating the wagon was the proximate cause of those injuries. The case was tried before a jury which returned a special verdict exonerating the appellee from any negligence contributing to the accident.

This appeal is from the judgment entered on that verdict. The sole issue presented for our review is the propriety of the trial judge’s refusal to instruct the jury that appellee owed the passengers in the wagon he operated a duty to employ the highest degree of care consistent with the undertaking. Instead, the court instructed the jury that appellee owed the passengers on the hayride a duty of ⁵¹⁰ ordinary care under the circumstances. 1 We shall hold that the proffered instruction was properly rejected and shall affirm the judgment in favor of the appellee. The facts material to the resolution of the issue are undisputed and can briefly be recounted.

On June 21, 1986, Standard Federal Savings and Loan Association (Standard Federal) held a picnic for its employees and their guests. Between 800 and 1,000 persons attended. Eileen Gunther, who was employed by Standard Federal, was joined at the picnic by her husband and their son, Robert. The picnic was catered by Collegiate Barbequer’s, Inc., and held at its premises known as Smokey Glenn Park in Gaithersburg.

As part of the entertainment it provided for the persons attending the gathering, Standard Federal contracted with appellee to operate a hayride at the picnic. Pursuant to that arrangement, appellee furnished a large wagon filled with hay and pulled by two horses. He operated the hayride from a designated point at the park providing a trip through the park for those who wished to participate. The hayrides were operated throughout the day.

At about 4:00 p.m. appellants and their 18 month old son Robert boarded the wagon for what was announced to be the last ride of the day. Approximately 40 people were seated in the wagon for that ride. During the ride the bridle on one of the horses came loose and appellee brought the wagon to a stop in order to refit the bridle. In the ⁵¹¹ course of appellee’s attempt to do this, the horses became agitated and began pulling the wagon in circles.

Before the horses could be brought under control, appellant Stanley Gunther and appellants’ son were thrown from the wagon by its erratic motions. Appellants assert that in operating the hayride appellee was a common carrier and owed a heightened duty of care to his passengers, ie., he was "... bound to employ the highest degree of care for their safety, consistent with the nature of the undertaking.” Mass Transit Administration v. Miller, 271 Md. 256, 259 , 315 A.2d 772 (1974). Alternatively, appellants argue that, even if the appellee was not acting as a common carrier, he was operating “a dangerous and unpredictable amusement ride such that the appropriate standard of care was the same as that assigned to a common carrier.” We reject both arguments. In imposing a more demanding standard of care upon common carriers, the appellate courts of this State have emphasized the public nature of their service of providing public transportation so necessary to stimulating the channels of commerce and conveying all members of the public in their commercial and private pursuits.

Drews v. State, 224 Md. 186, 191 , 167 A.2d 341 (1961), vacated on other grounds, 378 U.S. 547 , 84 S.Ct. 1900 , 12 L.Ed.2d 1032 (1964) (common carriers satisfy “urgent public need”); Stanley