McClearn v. Southeast Concrete Co.

Smith, J., delivered the opinion of the Court. Appellant (McClearn) here appeals from the action of the Circuit Court for Prince George’s County in granting motions of appellees, Southeast Concrete Co., Inc., and Thomas Penn (Penn), for a directed verdict. The motion was based on three grounds, (1) failure to prove primary negligence, (2) contributory negligence and (3) assumption of risk. We shall sustain the action of the trial court.

The accident happened on June 4, 1966. McClearn is in the cement finishing business with an uncle. On this date he was engaged in his trade with a crew of laborers at a small development in Prince George’s County. They awaited delivery of ready-mixed concrete for the basement of a home under construction.

Appellee, Southeast Concrete Co.,' Inc., was the supplier. Penn was the driver of Southeast’s truck. McClearn directed Penn to the basement window where the concrete was to be unloaded. Penn got in line with the appropriate window.

McClearn stepped behind the truck to direct the driver back. The driver was using rear view mirrors situated so that he could see backwards and down both sides of the truck. The truck was backed close to the window. McClearn then signaled for the driver to stop, which he did.

McClearn unfastened the chute which is pivotal at the mouth of the revolving drum of the concrete truck. He adjusted the chute for height. He proceeded to hold the chute with his right hand for the purpose of directing it into the window, intending to use his left hand for signaling to the driver. He signaled the driver to begin backing up, which he did.

When the chute was in the desired position, McClearn then signaled for the driver to stop. The driver failed to stop. McClearn yelled, “Hold it, hold it!” The chute struck the house near the window opening, knocking several bricks loose. It jammed McClearn’s hand between the chute and the wall, thereby causing the injuries which are the subject of this suit. ¹³⁷ McClearn testified that it was the custom in the trade for the drivers of concrete trucks to take their signals from him.

He admitted turning his back to the window in order to signal the truck driver. Penn was called as an adverse witness by McClearn. One portion of the record is as follows: “Q. Was there any statement or comment at that time about the manner of directing or the directing of your truck back to get in position to discharge ? A. Before I started back I asked him, I said, ‘You ought to get one of those men out of the basement up here so I can see one of them in the mirror while the man is holding the chutes.’ “He said, ‘That’s all right, come back.’ He said, ‘I’ll direct you back.’ ” At another point the record is as follows: “THE COURT: Mr. Penn, you said you had this discussion with the plaintiff prior to backing, that he ought to have somebody to hold the chute ? “THE WITNESS: That’s right. “THE COURT: Was it the practice to use two men in the back there when you back it ? “THE WITNESS: They usually use—if you’ve got two men on a job, you usually use a man that can always stay in the mirror while the other man handles the chute.

Once you step out of the view of that mirror, you don’t—you can’t see the man, and it is a general practice to have two men.” At no point was the aforegoing testimony of Penn disputed. As has been frequently said by this Court, in cases like this we must consider the evidence and all logical and reasonable inferences deducible therefrom in a light most favorable to the plaintiff. Trusty v. Wooden, 251 Md. 294, 297 , 247 A. 2d 382 (1968), Finneran v. Wood, 249 Md. 643, 645 , 241 A. 2d 579 (1968). Also, as was observed in Trusty v. Wooden, supra: “One may call an adverse party as a witness but if he ¹³⁸ does so he is bound by his adversary’s testimony unless it is contradicted or discredited.

Code, Art. 35 § 9 (1965 Repl. Vol.); Wood v. Johnson, 242 Md. 446, 453 , 219 A. 2d 231 (1966); Lehmann v. Johnson, 218 Md. 343 , 146 A. 2d 886 (1958).” Id. at 297. See also Williams v. Wheeler, 252 Md. 75, 79 , 249 A. 2d 104 (1969). In order for a plaintiff to prevail in an action for negligence, he must first allege and prove primary negligence, and he himself must be free of contributory negligence.

In addition, he must not have voluntarily assumed a known risk which risk resulted in the injury of which he complains. In People’s Drug Stores v. Windham, 178 Md. 172, 186 , 12 A. 2d 532 (1940), this Court stated: “The doctrines of assumed risk and contributory negligence are closely allied, but they are not the same thing. The doctrine of assumed risk implies intentional •exposure to a known danger, which may or may not be true of