Hensley v. Henkels & McCoy, Inc.

³⁹⁸ Smith, J., delivered the opinion of the Court. This case is an admitted attempt at an end run around the oft-expressed Maryland doctrine which states, “[T]he owner of land owes no duty to a trespasser or licensee, even one of tender years, except to abstain from wilful or wanton misconduct and entrapment.” The most recent pronouncements of this doctrine are found in Hicks v. Hitaffer, 256 Md. 659 , 261 A. 2d 769 (1970), and Mondshour v. Moore, 256 Md. 617 , 261 A. 2d 482 (1970). We shall sustain the action of the trial judge who refused to permit the end run. Appellee, Henkels & McCoy, Inc., is a contractor which on April 12, 1967, was engaged in the construction of a utility line for Potomac Electric Power Co., Inc. (PEP-CO).

It does not clearly appear whether PEPCO owned in fee simple the land upon which the line was being erected or whether it merely owned an easement across the land, nor is it necessary to our decision. High towers had been erected. The manner of stringing the wires between these towers called for the hanging of pulleys from the cross arms of the towers. Rope was strung through the pulleys.

It looped from one tower down toward the ground and then up to the next tower. The operation was described in the words of the general superintendent of the construction as follows: “Q. Now, how is this rope that has been referred to put on the towers and what do you mean by pulling it up at the end of the day ? A. Well, to answer your first question how is it put on the- towers, we have what we call running blocks that we hook underneath the insulator string. When these are installed in the air there is a small line of about a quarter of an inch attached in the block and' which is let down all the way to the ground on every tower down the line.

And as we bring our rope up to each tower the small line is untied from its lo'cation, tied onto the big rope and by hand a couple of guys, pull ³⁹⁹ it up through the block and down, attach it to a truck and go to the next tower and you repeat this process until you are fully through all the towers. This rope is — this is what they call slack lining in the business. This rope will drape between your towers and in most cases goes to the ground. But when it gets to the end tower then this truck stops, you put this winch or big pulley on the side of the truck, take a couple of loops around the winch and secure it at the opposite end from where you are pulling and slowly take up your slack until you get it up to the approximate location of the system conductor and then you tie it on.” One witness described the rope as coming within two feet of the ground.

The distance between the truck and the place where the rope was tied down was estimated at 3,000 feet. The truck was out of sight of the area where this incident occurred. The method here used was described as the usual one for getting conductor lines strung up on the towers. Normal procedure was for the line to be pulled up before the end of the working day.

On the day in question young Hensley, then 10 years of age, went out to play on the land upon which the power line was being erected. He began swinging on the rope while waiting for friends. At this time the contractor began taking up the slack in the rope. Young Hensley said, “[I]t went up kind of fast at first, and then I was too scared to let go. * * * It stopped for, might have stopped for a second”.

He looked down and “was scared”. “Up top it stopped around five seconds and then [he] started going hand over hand and then they reeled [him] in.” He was going toward the back yard of a neighbor “ [b] ecause it was lower”. “[W]hen they reeled [him] in [he] just went back there and [he] couldn’t hold on any longer and [he] just fell”. Suit was brought on behalf of young Hensley for his injuries and his father sued for expenses. A jury re ⁴⁰⁰ turned a verdict of $37,000.00 in favor of the boy and $5,400.00 in favor of the father. Judge Powers directed entry of a judgment n.o.v. Hensley notes that in State v. Machen, 164 Md. 579 , 165 A. 695 (1933), Chief Judge Bond said for the Court: “ ** * * The licensee must take the premises as he finds them.

At most, he can claim only that the licensor shall abstain from entrapping him to his harm; shall not create new and mu-disclosed sources of danger without warning him of the change in situation.’ Burdick, Law of Torts (4th Ed.), 548.” Id. at 583 . (emphasis added); and that this statement was repeated in Brinkmeyer v. Iron & Metal Co., 168 Md. 149, 153 , 177 A. 171 (1935) ; and in Myszkiewicz v. Filling Stations, 168 Md. 642, 648 , 178 A. 856 (1935). From these statements Hensley here fashions his argument in his attempted end run. Although there was no evidence of children’s playing on the lines in question prior to the current incident, there was evidence of use of the land upon which the pole line was erected as a means of going to and from church and school, as a football field, and as a place to play with sleds when snow was on the ground.

There was testimony from a neighbor that the children passed over the area going to and from school at the same time workmen were there and one of the foremen testified that employees had chased boys away from the rope earlier in the day. Hensley believes on the strength of the cases just cited and Jackson v. Penna. R. Co., 176 Md. 1 , 3 A. 2d 719 (1939) ; Power Co. v. Jeffress, 159 Md. 465 , 150 A. 788 , 71 A.L.B. 1198 (1930) ; and Maenner v. Carroll, 46 Md. 193 (1877), that the contractor has here “created a new and abnormal condition which increases the danger beyond that which the licensee had reason to regard as naturally attaching to his habitual use”, and that “[i]n such case the owner or possessor of land must give no ⁴⁰¹ tice of the change to the bare licensee”, that no such notice was given and, therefore, the contractor is liable to Hensley. We first turn to an examination of each of the cases cited by Burdick in his work for the proposition that the licensor “shall not create new and undisclosed sources of danger, without warning him of the change of situation” in an effort to determine the meaning intended by the author.

We find that none of those cases support the position here taken by Hensley. In Beck v. Carter, 68 N. Y. 283 , 23 Am. R. 175 (1877), excavation was done in close proximity to a highway. In holding the owner liable for the injuries sustained by one who fell in the excavation, the court said: “It was not the case of a bare permission by the owner to cross his land adjoining a public street.

The land had, by use long continued, been made, for the time being, a public place, and part of the highway. It was very probable that injury would occur if the area was left uncovered. The boundary of the alley was not defined, and persons crossing the lot in the usual way were not trespassers. It is quite conceivable that so long as the hotel building stood, it was an advantage to the owner that the unoccupied part of the lot should be open to the public.

We think the defendant could not, under the circumstances, make a dangerous excavation and leave it unprotected without responsibility to those accustomed to use the lot as part of the highway, and who, while exercising due care, were injured by falling into it.” Id. at 293 . In Heskell v. Auburn L. H. & P. Co., 209 N. Y. 86 , 102 N. E. 540 (1913), the suit was by a telephone company employee against an electric company. Telephone wires were placed upon the pole of the electric company with “the gratuitous permission of the [electric company], implied through its passive acquiescence”. “[T]he intestate ⁴⁰² was directed by the telephone company to ascertain and report to it what was to be done to remedy a reported defective condition of the telephone wires and he came in contact with the [electric] wire while he was executing the direction.” At page 92 the court said, “[T]he sole duty of the [electric company] was abstention from inflicting intentional or wanton or willful injury.” It then went on at page 94 to distinguish Braun v. Buffalo General Electric Co., 200 N. Y. 484 (1911), saying: “In the Braun case the intestate was injured while upon the property of his employer, across which ran the wires of the defendant therein, who might reasonably have apprehended that conditions might arise or exist through which the owner of the property or his employees might come in contact with the wires. Had the wires of the [electric company] here been upon a pole of the telephone company it would have been under the duty toward the intestate of exercising reasonable care to maintain a proper insulation.” Id. at 94.

Close reading of the two cases of Lepnick v. Gaddis, 72 Miss. 200 , 16 So. 213 (1894), and 18 So. 319 (Miss. 1895), cited by Burdick reveals that they are of no help to Hensley. In the later case of Ingram-Day Lumber Co. v. Harvey, 98 Miss. 11 , 53 So. 347 (1910), also cited by Burdick, no liability was held to exist when an individual took passage on a logging train “in the furtherance of some purpose of his own in seeking employment”, the court holding that in going upon the private lands of the logging company the decedent took upon himself all the risk of such entry. It distinguished the case of Albion Lumber Co. v. De Nobra, 72 F. 739 (9th Cir. 1896), stating: “Under this promise of employment, and at the request of the general manager, in furtherance of the business which he represented, the party took passage, and was killed by the negligence. ⁴⁰³ of the company, and of course it was liable. The above statement of the De Nobra case shows how widely these cases differ in their facts. “It is our judgment that no cause of action is shown by the facts of this case * * Id. at 19-20.

In Fox v. Warner-Quinkm Asphalt Co., 204 N. Y. 240 , 97 N. E. 497 , 38 L.R.A. (N.S.) 395 (1912), cited by Bur-dick, an individual was injured when crossing land as a short cut from one street to another. The court reiterated the Massachusetts rule that a licensee goes upon land at his own risk and must take the premises as he finds them. If pointed out that all the defendant did in that case was to continue an excavation upon its own land which it had the right to begin and that all of this was done openly and visibly.

It stated that the plaintiff was thoroughly familiar with the locality, knew that the excavation was going on, and that its trend was toward the short cut across the defendant’s land. It then said, “It has been declared by this court that dangerous work in plain sight is notice to a mere licensee.” Id. at 245 . In Thompson v. B. & O. R. R. Co., 218 Pa. 444 , 67 A. 768 (1907), a child was injured on a railroad turntable. The court expressly rejected the attractive nuisance doctrine, stating: “The doctrine is a sweeping innovation on the settled common-law rule that a landowner is not liable for the condition of his premises to one who enters them without permission.

We are of opinion that it is not sound in principle, and that it cannot be sustained.” Id. at 451 . The only portion of the opinion that might be said to give aid and comfort to the position of Hensley here is the statement of the court in discussing Rachmel v. Clark, 205 Pa. 314 , 54 A. 1027 , 62 L.R.A. 959 (1903), where it said: “The negligence was in placing on a public way, ⁴⁰⁴ where all persons had a right to be, a slab of slate in such a position that the touch of a child’s hand would cause it to fall.” Id. at 449; together with the further comment: “The establishment of such a duty [attractive nuisance] would create a restraint, which in some cases would amount to a prohibition, upon a mode of beneficial use of land, for the protection of intruders and intermeddlers. It is difficult to see any ground upon which such a duty can be placed. An owner is not liable for leaving his land in its natural shape.

Why should he be held liable for placing structures upon it which are harmless in themselves and are necessary for the lawful use he wishes to make of it? It cannot be said that he invites or allures children because no such intention in fact exists, nor that he sets a trap for the innocent and unwary.” Id. at 450. This case is here examined as a basis for the conclusion of Burdick, an examination in no way altered by the fact that its holding relative to attractive nuisance was later overruled. See Thompson v. Reading Co., 343 Pa. 585 , 23 A. 2d 729 (1942).

In Weaver v. Carnegie Steel Co., 223 Pa. 238 , 72 A. 552 (1909), the facts were similar to Benson v. Baltimore Traction Co., 77 Md. 535 , 26 A. 973 (1893), since a guest who had previously sought permission to visit a steel mill was injured in the process of the visit. The court denied liability, holding that an opening concerning which there was controversy “was part of the apparatus arranged for the convenient and proper operation of the mill, and was in no sense a trap or an obstruction to anyone making good use of his senses.” Id. at 240. Chicago & R. I. & P. Ry. Co. v. Payne, 103 Ark. 226 , 146 S. W. 487 , 39 L.R.A.

(N.S.) 217 (1912), the last case cited by Burdick, is of no help to Hensley. • Recovery ⁴⁰⁵ was there denied when the railroad in order to drain its right of way dug a ditch across the foot path on its right of way that had been used by the public with the railroad’s permission for ten years. It put piles of dirt in the roadway five or six feet wide and two or three feet deep. The