Lawrence v. Cavanaugh

Marbury, J., delivered the opinion of the Court. Prior to his accident on February 20, 1965, the appellant, James D. Lawrence, had been employed by the appellees David T. Cavanaugh and Elizabeth Cavanaugh, husband and wife, for a period of almost two years. Before his employment on the Cavanaugh farm he had worked as a dairyman for fourteen years on another Montgomery County dairy farm and actually had spent substantially all of his working life on a farm. In 1960, the Cavanaughs, who had owned the farm since 1940, shifted from general stock farming to a dairy operation.

Subsequently, they built a herringbone type milking parlor, with six milking stalls and a dairy room which housed the machinery for handling and processing the milk. Above the stalls and dairy room was a loft where feed was stored and from which the feed was distributed to- the cows below through vertical pipes leading to individual feed cups. Although the bulk feed was originally supposed to be distributed somewhat automatically, it developed that it was necessary for someone to climb into the loft and to distribute the feed over the pipes by hand at each feeding. In addition, there was a motor installed in the loft for the purpose of operating the apparatus that was used to blow the bulk feed into the loft.

The only access to the loft was by a door on the outside of a gable end of the building. This door was situated some ten feet above ground level and was reached by climbing a movable wooden ladder that was ¹⁷⁸ leaned against the side of the building, and reached within a few inches of the bottom of the door. The door, which opened ■outward, was hinged on the left side and there was testimony to the effect that it was somewhat difficult to open while standing on the ladder. There was also testimony that this was an unusual arrangement for reaching the loft area of a milking parlor, access usually being attained by a stationary ladder or .stairs, frequently located inside the building.

During the winter months it was necessary to negotiate the ladder in darkness and there was evidence that the area was inadequately lighted. On the morning of the accident, the appellant, clad in heavy clothing and four-buckle arctics, climbed the ladder and, after spreading the feed as he was required to ■do, began his descent from the loft. A high wind was blowing. As Mr. Lawrence reached over and slammed the door he slipped and fell through the ladder causing four of the wooden rungs to break, resulting in the rupture of a disc in his lower spine.

After a period of recovery Mr. Lawrence obtained employment as a janitor. At trial there was testimony that he had sustained a 15-20% disability as a result of the accident. This action for damages was brought in the Circuit Court for Montgomery County where it was tried by a jury which resulted in a verdict for the appellant in the amount of $50,000. Subsequently the appellees moved for judgment n.o.v. This motion was granted by Judge Moore on the ground that as a matter of law the appellant had assumed the risk of injury in continuing to act as he did in using the ladder.

From the granting ■of that motion and the entry of judgment in favor of the appellees for costs, this appeal followed. The appellant argued that the defense of assumption of risk is not available to an employer who has failed to provide a ■safe place for his employees to pursue their duties. In support ■of this he cited Frizzell v. Sullivan, 117 Md. 388 , 83 Atl. 651 . In that case, however, the employee could not be said to have voluntarily assumed the particular risk that caused his injury ■since there was nothing to show that he knew that the defect even •existed, while there was evidence that the employer or his agent ¡knew or should have known of the serious defect. ¹⁷⁹ It is true, as the appellant pointed out, that Code (1957), Article 89, Section 29, does place a duty on employers to furnish a safe place of employment.

But the statute alone does not, by its terms, provide a remedy to an employee who finds his working conditions unsafe and neither do its terms abrogate the defense of assumption of risk if an employer fails in his duty to furnish a safe place in which to work. In ruling that Lawrence had as a matter of law assumed the risk of injury to himself, the trial judge had the following facts on which to base his decision. Mr. Lawrence was an experienced farm worker, accustomed to conditions ordinarily encountered around dairy barns. He knew of the condition that existed with respect to the movable ladder used for access to the loft and the dangers attendant upon using this ladder.

In spite of this knowledge