Harrison v. Harrison

Finan, J., delivered the opinion of the Court. This appeal is brought by Charles E. Harrison, the plaintiff in a personal injury action instituted against his son, Paul F. Harrison, the appellee herein, in the Circuit Court for Carroll County and later removed to the Circuit Court for Baltimore County (Maguire, J.) for trial before a jury. The elder Harrison appeals the lower court’s disposition of the action in directing a verdict in the appellee’s favor at the conclusion of the plaintiff’s case. Charles E. Harrison owned and operated a dairy farm maintaining a herd of Holstein cows and bulls in Carroll County, Maryland from 1923 until he turned the farm over to his sons in 1955.

From 1955 until the time of the injury complained of, the appellant continued to work on the farm as a paid employee of his son, Paul. On February 16, 1967, while doing the regular chores of feeding the cows and bulls in the “loafing shed” area of the farm, a young Holstein bull which had been purchased by Paul some three weeks earlier, suddenly charged and hit the appellant, knocking him approximately 15 feet and causing him to suffer three broken ribs and a dislocated shoulder. The injuries prevented the appellant from working for a period of three or four months, and for a period of a year they continued to affect his capacity to perform his normal duties on the farm. On ¹⁸⁶ February 13, 1970, Mr. Harrison filed suit against his son, Paul, alleging negligence and claiming $60,000 in damages.

The testimony presented in the court below disclosed that there are two principal methods of breeding cattle, that of using a bullpen in order to separate the bull from the cows until the time that servicing is to occur, and that of allowing the bull and cows to roam together at all times. The appellee used the latter method in the operation of his farm, permitting his bull to remain with the cows in the “loafing shed,” a fenced, covered area where the cows are milked and where they stay during inclement weather. Additionally, the appellee testified that the bull which struck the appellant did not have a ring in its nose, and that the farm was not equipped with an electric fence, an electric stick (a device which provides an electric shock to prod and control large animals) or a staff (a long pole which when attached to the ring in a bull’s nose allows one to guide the animal). While it was conceded by the appellee that the use of a bullpen, a “bull ring” and staff, and an electric fence or an electric stick would be safer than not using them, the appellant admitted on deposition that many of the smaller farmers in Carroll County did not use bullpens, and he admitted on cross-examination that he never used a bullpen when the farm was under his control.

The appellant contended in the court below and now contends on appeal that the failure of Paul to equip the farm and bull with safety devices, combined with the fact that Paul never obtained safety bulletins which he knew were available from the United States Department of Agriculture, constitutes a violation of an employer’s statutory duty to provide a safe place of employment and therefore amounts to a prima facie case of negligence. Judge Maguire, however, found first that “there was no negligence on the part of Paul Harrison to submit to the jury for determination;” second, relying on Lawrence v. Cavanaugh, 249 Md. 176 , 238 A. 2d 859 (1968), that the plaintiff had assumed the risk of the ¹⁸⁷ happening which caused the injury; and third, that even if the defendant had been guilty of primary negligence and the plaintiff had not assumed the risk, that the plaintiff was guilty of contributory negligence. Accordingly, the court directed a verdict in Paul’s favor from which his father now appeals. Maryland Code (1969 Repl.

Vol.), Art. 89, § 29 provides : “Every employer shall furnish and maintain employment and a place of employment which shall be reasonably safe and sanitary for employees. Every employer shall install, maintain and use such methods, processes, devices and safeguards, as are reasonably necessary to protect the life and safety of such employees, and shall do every other thing reasonably necessary to render safe and sanitary such employment and place of employment.” We think the lower court was correct in ruling that there was no primary negligence on the part of Paul and accordingly, on that basis, we affirm the judgment for the defendant. We see no purpose to be served by a discussion of the issues of assumption of risk and contributory negligence and therefore confine this opinion to the question of primary negligence. The thrust of the plaintiff’s argument is that the defendant, contrary to the provisions of Article 89, Section 29, failed to provide him with a “reasonably safe place” in which to work and that negligence may be inferred from this violation of the statute.

The short answer to this contention is that the evidence in the case was not sufficient to raise a question for the jury as to whether