Johnson v. Mitchell Supply, Inc.

Menchine, J., delivered the opinion of the Court. Rodney Johnson, then aged 9V2 years, suffered a broken leg when struck by sheetrock wallboards falling from a stack that had been put in place by employees of Mitchell Supply, Inc. (appellee). Harry Johnson and Dorothy Johnson, individually and as parents of Rodney Johnson (appellants), entered suit in the Circuit Court for Charles County against appellee, claiming that the injury to their son was caused by the negligence of its employees. Removed to the Circuit Court for Calvert County, in due course the case was tried before a jury in that court.

The jury’s verdict was for the defendant. From that judgment thereafter extended, the Johnsons have appealed, contending that the instruction of the trial judge with respect to the issue of contributory negligence was erroneous. Appellee defends the instruction but contends that in any case (a) no evidence of primary negligence was shown and (b) Rodney Johnson was guilty of contributory negligence as a matter of law. Thus, appellee argues, its motion for a directed verdict should have been granted as a matter of law so that even if the instruction was erroneous, the error was harmless because appellants in any case were not entitled to recover.

We agree that if that contention is sound, it would be unnecessary to address the alleged instructional error. Where an unsuccessful litigant is not entitled to recover in any event, no prejudice arises from a faulty instruction. White v. Bramble, 124 Md. 395, 402 . In passing to consideration whether issues of negligence or contributory negligence may be determined as a matter of law, we “must assume the truth of all credible evidence on [those issues] and of all inferences ' fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made ... .” Newton v. Spence, 20 Md. App. 126, 134 , 316 A. 2d 837, 842 (1974).

We shall examine the record in that light. ¹⁰¹ Rodney’s parents had contracted with one Joe Pickeral for the addition of a living room, bedroom, bathroom and basement to their existing dwelling in Charles County, Maryland. The family continued to reside in the dwelling during the construction. The new addition was about 80% complete on February 14, 1974. Charles Henry Washington, an employee of the appellee, assisted by another, made a delivery of 30 bundles of sheetrock wallboards (2 to a bundle) to the construction site of the addition.

Each individual board was 4' x 12' x Va". The boards had been trucked to the site in two “ricks” of 15 bundles bound together by tape. The “ricks” were individually lifted by a boom on the truck to window level. The tapes on the “ricks” were removed at that point and the bundles individually brought within the dwelling and stacked as hereafter described.

The bundles never were re-taped into “ricks.” The two sets of 15 bundles were stacked edgewise on the plywood subflooring, resting against two by four studs of two separate walls. The placement was made in such a way that the boards bisected the several floor joists rather than paralleling them in order to distribute the great weight of the material. John Digges Mitchell of the appellee corporation gave the following testimony: “Q Is there a custom within the building supply trade as to the manner in which drywall is to be stacked on a residential job site such as the one involved in this case? A There very definitely is.

Q What is that custom? A The custom is that it be stacked in an upright position leaning against a stud wall or a wall in the room or one of the extremity walls but never laid flat. The weight involved in this product is just too much to stand the average load of floor joist system. The only time it is laid flat is the case of a concrete slab such as a ¹⁰² garage or grade recreation room where it’s concrete but ever [sic] on a wooden floor.” The bundles were not tied to the studding in any way.

Washington testified that the bundles could not be laid flat down in the center of the room “because it would bow the floor.” The weight of an individual bundle is not shown in the record. Washington gave differing estimates of the distance between the wall studding and the bottom of the stacked wallboards, his testimony showing a variation from three to eight inches. On the other hand, Rodney had described the bundles as “standing straight up and down.” Washington knew that the Johnson family continued to reside in the home during the construction of the addition and knew that young children were included within the family unit. Delivery was accomplished between 8:30 and 9:30 A.M. on February 14, 1974 at a time when no member of the Johnson family was at home.

At about 3 P.M. on that date, when Rodney returned from school, he was told by his mother to “go out to the addition and sweep up the insulation that the dog scattered all over.” Rodney thus described the events leading up to his injury: “Q What did you do then when you went into the room to sweep up the insulation? Do you recall what you did first? A Yes, sir. Q What was that?

A I went in and went for the biggest piece of insulation first. Q Where was this? A In front of the sheetrock. Q What did you do with it?

A I went over there and started to sweep it up but I bent over so I could sweep it up and my rear end bumped against the sheetrock. ¹⁰³ Q Which stack of sheetrock did your rear end bump against? A When you come in the doorway the one to your left. Q The one closest to the doorway? A Yes, sir.

Q What happened then after you bent over and your rear end bumped the sheetrock? A I turned around to see what I hit because I didn’t know whether it was going to fall or not. When I turned around it was falling and I caught one sheet almost and I was falling back and then the rest of it started coming down. Q Rodney, when you fell, how did you fall?

A On my back. Q After you fell where was the sheetrock? A On top of me. Q Do you know how much sheetrock was on top of you?

A No, sir. Q What did you do then? A I screamed. Q Do you remember what you screamed or said?

A No, sir. Q What do you remember happening then? A My mother and brother running into the room. Q Which brother?

A The oldest boy.” The mother of the boy thus described her observations and course of action when she responded to her son’s screams: “Q When you got to the bedroom area, what, if anything, did you observe? A Rodney was lying on the floor screaming with the sheetrock on top of him. ¹⁰⁴ Q Do you recall approximately how many packages of sheetrock was on Rodney? A About six, maybe more because I don’t remember putting more than two or three on each side. I do remember that but I can’t say exactly how many.

Q After you observed Rodney on the floor, well, can you describe what manner the sheetrocks were lying on top of him? How was he positioned? A Lying back but he had his elbow, you know, like the hip holding the top part of his body up. We taken off the sheetrock.

One leg was sort of out in this position, back, and one leg was out. Q What means did you use to get the sheetrock off of him? A First my oldest son and I tried lifting it all at once. We couldn’t.

I told him to go get something to pry it up. We tried prising [sic] it all up at once. We still couldn’t. So we had to take one pack at a time.

Q As you lifted the packs, what did you do with them? A Stand some on the opposite side of the room. There was two packs remaining, some to the left and some to the right against what was remaining standing. Q Did you finally get all of the packages off Rodney?

A Yes, I did.” The following testimony by the mother serves to aid understanding of the manner in which the material fell upon her son: “FOREMAN OF THE JURY: We would like to know if the sheetrock fell forward on top of the boy or fell from underneath him. How did it fall on him? ¹⁰⁵ JUDGE BOWEN: I think I see the question you have. Mrs. Johnson, let’s assume that this is the wall, the studding and partition. Here is the sheetrock leaning up against the wall.

The jury would like to know whether the sheetrock fell this way with him out here or whether it slid out that way? THE WITNESS: From the way it was lying on him the bottom part was back, it came top first toward him, from the top over. JUDGE BOWEN: When you got there, let’s say this is your son, when you got there he was down like this with some of the sheetrock catching him from where? THE WITNESS: From here down.

JUDGE BOWEN: About a little above his belt line down was under the sheetrock? THE WITNESS: Yes, sir. JUDGE BOWEN: Some was on top of him and some was still standing? THE WITNESS: Yes, sir.” Negligence We are persuaded that the evidence created a jury issue as to primary negligence.

The great weight of the material, coupled with its bulk, combined to create a potential danger to persons approaching it, unless ordinary care was exercised in connection with its stacking. In the subject case the evidence would admit of a finding that the heavy boards had been stacked so slightly removed from the perpendicular as to form a kind of Sword of Damocles, awaiting but an insignificant touch to bring about their crashing, cascading descent. Contributory Negligence We are persuaded also that the issue as to contributory negligence was for the jury. ¹⁰⁶ Rodney Johnson was but nine years of age at the time of his injury and was charged only with the exercise of that degree of care reasonably to be expected of one of such tender age. State, use of Taylor v. Barlly, 216 Md. 94, 102 , 140 A. 2d 173, 177 (1958).

He did not know what sheetrock was or how much it weighed. Although the record shows that he was conscious that the stacked material possibly might fall if struck, it does not appear that he was aware that its fall could injure him. He testified that he consciously attempted to avoid hitting the sheetrock by facing away from it while sweeping up the debris upon the floor. Despite that attempt, he did bump his “rear end” against the material.

A trier of facts, measuring such a bump by a nine year old against the bulk and weight of the material could conclude that it was inconsequential. We cannot say, as a matter of law, in the circumstances of this case, that this inadvertent bumping of the boards was an act of contributory negligence barring recovery. Hooper v. Mougin, 263 Md. 630, 634 , 284 A. 2d 236, 239 (1971). The Instructions The trial court’s instructions to the jury as to contributory negligence were as follows: “. . . there is another principle of law involved and that is in this state contributory negligence in any degree whatsoever is a complete bar to recovery.

On this aspect of the matter all of the plaintiffs, father and mother as well as young Rodney, rise or fall on whether or not young Rodney was guilty of contributory negligence. You will understand, ladies and gentlemen, that when you start to decide what is or is not contributory negligence that all persons are required to exercise due care for their own safety. Regardless of how dangerous a situation someone else may have created, you may not when you see that it is there go blundering into it and then say that the person ¹⁰⁷ creating it should pay if you yourself did not take the proper steps for your own safety. So that if you fail to take or exercise due care for your own safety, you are guilty of contributory negligence, and if you are guilty of contributory negligence in any degree, no matter how slight, in this state you cannot recover.

It doesn’t matter if the defendant is ninety-nine percent negligent and you are one percent. If you are negligent in any degree as a plaintiff you cannot recover in this state. “One further corollary. Just as we took Mr. Washington as a truck driver and delivery man with thirteen years experience and determined whether what he did met the standard of care in his end of the matter, so with young Rodney. Rodney is beyond the age where he can as a matter of law be said not to be able to be contributorily negligent.

There comes a time as you go down the age bracket until you get to be an age where below that a child can’t be contributorily negligent. Just doesn’t have sufficient power as you get into younger children to appreciate danger to themselves. You can understand that. “Now Rodney is past that age but he is something less than a mature adult