Sneider v. Frank J. Goettner Construction Co.

McWilliams, J., delivered the opinion of the Court. Appellant (Sneider) fell from a ladder and dashed his foot against the basement floor of the house appellee (Goettner) was building for him. The ensuing litigation ended in the direction of a verdict for Goettner. Aggrieved, Sneider appeals to us.

Since we think Goettner ¹⁹⁷ seems to have the right of it we shall not disturb the action of the trial judge. In October 1963 Goettner agreed to build the house specified by Sneider’s architect. Article 7 of their contract required Goettner to “permit and facilitate observation of the work by [Sneider] * * * at all times.” Goettner said Sneider came “quite often;” that he could not “keep him off” of the job. Around mid-afternoon on 15 April 1964 Sneider and his brother-in-law, Robert Siegmeister, visited the still unfinished house.

Sneider took Siegmeister on a “tour.” Eventually they came to the opening for the stairwell leading to the basement. Siegmeister said the opening was four feet wide and “maybe six or seven feet long.” One part of an aluminum extension ladder, at the time the only means of access to the basement, was resting against “the four foot part.” It “stuck up out of the stairwell” two or three feet above the level of the floor. Sneider announced his intention to descend into the basement to inspect a “blower fan” which was being installed in connection with the air conditioning machinery. He had used the ladder several times before 15 April but he could not “recall whether * * * [on those occasions] the concrete had already been poured or whether it was still gravel.” At any rate, the floor of the basement was concrete on this occasion.

We shall let him describe what followed: “Well, I went to the stairwell and I remember looking down it at the new floor which I had, I don’t believe I had seen before, and the usual ladder was in place and I — as I usually do when I go up and down a ladder and which wasn’t usual for me — I make sure that the angle of the ladder is correct for safety and, feeling assured that it was safe to go down, I — and I remember this distinctly, putting my feet on the rung below the first-floor level. In other words, I took particular caution not to step on the rung that was above the header and I ¹⁹⁸ stepped on the rung below the header and with one foot and then easily swung over and put both feet, had both feet on the rung with both hands on the ladder and then, as I started to descend taking my next step downward, I could feel the ladder slipping away and it just seems like I hung there an eternity and I remember just falling straight down and hitting, I guess, stiff-legged on the concrete and then just falling backwards on my buttock and rolling onto my back and then feeling this excruciating pain in my left heel and I knew immediately it must be broken, a burning sensation.” Siegmeister testified Sneider “adjusted the ladder and pulled it up to an upright, more upright, position.” It then “sat flush and more upright” against the open part of the stairwell, he said. Siegmeister was not asked to hold the ladder nor did he. He described Sneider’s fall as a “toppling backwards.” “The ladder,” he went on to elaborate, “was sliding away this way and he [Sneider] was going this way so he lost the ladder.

The ladder was falling, * * * in a counterclockwise direction; he was falling in a slightly clockwise direction.” (Emphasis added.) Since the ladder also fell into the basement Siegmeister had to wait until one of the workmen replaced it before he could descend and minister unto his kinsman. Earl Spivey, to whom Goettner had subcontracted the duct work, had gone down the ladder “about eight or ten times” during the morning of the same day. “The last time” he swung around “and went down sort of sudden.” “The ladder went out from under” him; he fell “and broke * * * [his] left ankle heel bone.” He said the concrete floor “had been poured recently *• * * a couple of days before.” Goettner was on the job when Spivey fell. He said he was aware of the incident. He left, however, before Sneider arrived.

Sneider, it seems, knew nothing of Spivey’s fall. Goettner testified that when he left the ¹⁹⁹ ladder had been replaced in the stairwell and was being used by Spivey’s mechanics. We think Velte v. Nichols, 211 Md. 353 (1956) is controlling. The salient facts in that case, as related by Judge Henderson (later Chief Judge) who delivered the opinion of the Court, are as follows: “On