Sanner v. Guard

Marbury, J., delivered the opinion of the Court. The plaintiff-appellant appeals from a judgment entered for costs upon a jury verdict in favor of the defendant-appellee in a suit instituted to recover damages for personal injuries sustained by appellant in the course of his employment in an accident which occurred November 29, 1960. Both the appellant and the appellee were employees of Drummond & Co., Inc., a paving contractor on a construction job, while laying macadam for a new air strip at Fort Meade, in Anne Arundel County. The appellant, Lloyd J. Sanner, was the job superintendent, and the appellee, James F. Guard, was a roller operator under his supervision.

On the morning of the accident it was found that one of the heavy pieces of construe ²⁷³ tion equipment, an air compressor, would not start due to a dead battery. The appellant directed the appellee to take a pickup truck and go to the appellee’s automobile to get a set of jumper cables. The truck in question was assigned by Drummond to the appellant for his use. Sanner had had the truck for fifteen to eighteen months, ever since it was new, and was responsible for the truck’s maintenance and repair.

It was equipped with an automatic transmission and there was no clutch pedal, but the position indicator on the dial of the gearshift mechanism was missing at the time of the accident, and had been missing for twelve months or more prior thereto. The plaintiff had made no effort to have the position indicator replaced during that entire period of time. He claimed that the indicator was not needed, but admitted that without the indicator a driver could not tell from looking at the mechanism precisely in what gear was the truck. The mechanism was so designed that with the gearshift lever arm all the way up (and the indicator, had it been present, opposite the letter “N” on the dial) the mechanism was in a neutral position.

With the lever arm one notch down from this position (and the indicator, had it been present, opposite the numbers “1-4” on the dial) it was in a forward drive position, and the truck would be in gear. After securing the jumper cables from his automobile, the appellee drove the truck back to the job site, and stopped it facing the rear of the compressor, with about two or three feet of space between the front of the vehicle and the rear of the compressor. He handed the cables to a workman, put the truck in what he though wras neutral, and speeded up the engine by pulling out the hand throttle so as to produce a sufficient flow of electricity for proper use of the jumper cables. Meanwhile the appellant, who had been standing alongside of the compressor, walked into the two or three foot space between the front of the truck and the rear of the compressor, released the hood latch and raised the hood of the truck.

He then remained in this position for a period variously estimated by him at from five to fifteen seconds, waiting for someone to hand him the cables to be attached to the battery, located on the right side of the truck. Suddenly the truck jumped foward and pinned him against the compressor, resulting in serious injuries. Guard testified that ²⁷⁴ the forward movement of the truck occurred when he let up on the foot brake, after placing the lever in what he thought was neutral, setting .the hand brake, and speeding up the engine. He stated that the truck “must have cut in gear and jumped ahead.” The appellant first claims that the trial judge erred in not instructing the jury that under the evidence he was free of contributory negligence as a matter of law, and that the court’s instructions on contributory negligence did not fairly present the theory of appellant’s case.

It is fundamental that the issue as to the existence vel non of negligence, whether primary or contributory, should ordinarily be left for determination by the jury. Each case must be judged on its own facts, and the court should rule as a matter of law that there is no contributory negligence only where the circumstances are such that reasonable minds could not reach differing conclusions on the issue. Wiggins v. State, Use of Collins, 232 Md. 228 , 192 A. 2d 515 ; Boyd, Adm’r v. Simpler, 222 Md. 126, 158 A. 2d 666 , Lindenberg v. Needles, 203 Md. 8 , 97 A. 2d 901 ; Valcourt v. Ross, 201 Md. 17 , 92 A. 2d 359 . In deciding whether there is evidence of contributory negligence on the part of the plaintiff legally sufficient for consideration by the jury, the court must view the evidence in the light most favorable to the defendant.

Kantor v. Ash, 215 Md. 285 , 137 A. 2d 661 ; Lindenberg v. Needles, supra; Goldman v. Johnson Motor Lines, 192 Md. 24 , 63 A. 2d 622 . The evidence showed that the plaintiff was the job superintendent, with personal responsibility for the manner in which the work and progress was conducted, and with full authority to direct and control the actions of the defendant, as well as other employees on the job site. Although he saw that the defendant had stopped the truck in such a position that there was a distance of only two or three feet between the front of the truck and the compressor, he did not instruct the defendant to move the truck into any other or safer position. The plaintiff then walked from a position of safety alongside of the compressor into the narrow space between the front of the truck and the compressor and remained there for up to fifteen seconds according to his own testimony, although there was no necessity of his remaining ²⁷⁵ there, since the battery could have been reached just as easily from the side of the truck where there would have been no danger.

He did this in spite of his knowledge of the missing gearshift position indicator, and although he knew that the engine was not idling but was running at an increased rate of speed. He placed himself in a position which was considerably more dangerous than it otherwise would have been by his own admitted failure to fulfill his responsibility to maintain the truck in safe mechanical condition by replacing the gearshift position indicator. Certainly he must have realized that the manufacturer had placed the position indicator on the mechanism for the very purpose to enable the driver to be sure what position the gears were