MOYLAN, J., delivered the opinion of the Court.
At the time of the accident which resulted in the present litigation, Maryland Sales & Service Corporation (appellant) and Roofers, Inc. were both engaged in the construction of a new roof on the Maryland Cup Corporation building in Baltimore County. Both companies had been subcontracted with by Ames-Ennis, the general contractor. The appellant's work consisted mainly of laying a metal roof deck on the building, welding it into place, and then cutting holes in the
On July 29, 1965, the metal roof deck had already been installed and the holes had been cut by the appellant. The insulation also had already been laid by Roofers, Inc. On that day, Henry Howell (appellee), an employee of Roofers, Inc., while walking backwards operating a tar and felt spreading machine, fell into one of the holes in the roof cut by the appellant and was severely injured.
Suit was instituted against Maryland Sales & Service Corporation by Henry Howell and his wife, alleging negligence. Employers Insurance Company of Wausau, the Workmen's Compensation carrier for Roofers, Inc., was joined as a use plaintiff.
At the trial of the case, at the conclusion of all the evidence, the court granted the defendant-appellant's motion for a directed verdict on the count in the declaration alleging a loss of consortium. The court reserved ruling on the defendant's motion for a directed verdict as to the claim for personal injuries and submitted the case to the jury. The jury returned a verdict in favor of the plaintiff-appellee. The defendant's motion for judgment N.O.V. was denied.
On appeal, the appellant contends that the evidence was legally insufficient as to negligence on its part and that, in any event, Henry Howell had assumed the risk of his injury or was guilty of contributory negligence as a matter of law.
In reviewing the contentions, we must look at the evidence in the light most favorable to the plaintiff-appellee, assuming the truth of all the evidence tending to sustain their claims of 1) negligence and 2) lack of contributory negligence or assumption of risk and drawing all favorable inferences of fact fairly deducible therefrom. Thomas v. Corso, 265 Md. 84, 288 A.2d 379; Burns v. Goynes, 15 Md.App. 293, 290 A.2d 165.
The appellee Howell testified that he arrived at work on July 29 at approximately 7:30 a.m. and spent the next hour
Howell testified that the roof was divided by an expansion joint, that on the previous day he had worked on the other side of the expansion joint, and that he had not worked on this near side of the roof before. He stated that he had previously observed ten or twelve holes in the roof on the other side of the expansion joint and that there was a twelve-inch board around each to indicate its presence, so that the holes were readily visible.
Not seeing any impediment ahead, the appellee testified that he proceeded to operate the machine, walking backwards pulling the machine, and continually looking at the guide on the machine to make sure that the felt was being applied straight on top of the hot tar to avoid any "fish mouths" where water might later accumulate and cause leaking. A fellow employee, Ollie Moore, also known as "Pee Wee" (who was deceased at the time of trial), walked behind the machine and assisted him. After proceeding in such a
Albert Harris, the project manager for Ames-Ennis, the general contractor, testified as an expert witness on behalf of the appellees that when he went up on the roof later in the day, he did not notice anything around the hole. He further testified that although the general contractor was responsible for the overall safe conduct of the subcontractors on the job, each subcontractor was required to conduct itself in a safe manner. He stated that the general contractor would have to know of a particular hazard before it could respond to it and that, to his knowledge, Ames-Ennis was not notified about the open and unguarded hole in question. He was permitted to testify that Ames-Ennis should have been notified by the appellant that the hole was being cut
William P. Hoffman, the foreman for the appellant at the time of the accident, testified as an expert witness in its behalf. He stated that the witness Harris instructed him to have the hole in question cut. He testified that, to his knowledge, the general contractor was always responsible for the safety or covering up of the holes and that the work was usually done by carpenters. He testified that he never covered the holes in the past and that it was his practice to leave them open because he dealt in steel and did not have anything with which to cover them. He admitted, on cross-examination, however, that a length of one of the sheets of steel could have been placed over or around the hole in question. He further testified that the exact location of the holes was marked in the structural frame in the steel
A subcontractor on a construction job owes a duty to the employees of other contractors similar to the duty owed by an employer to an employee or by the owner of real estate to an invitee on the premises. Although he is not an insurer of their safety, he must exercise due care to provide for the protection and safety of those employees. Finkelstein v. Vulcan Rail Co., 224 Md. 439, 168 A.2d 393. This includes the duty to warn employees of any unreasonable risk which is either known to the subcontractor or that could have been discovered by reasonable inspection. There is no duty, however, to warn of dangers which are so apparent and obvious that an employee acting as a reasonable man could have discovered them. LeVonas v. Acme Paper Board Co., 184 Md. 16, 40 A.2d 43. The standard of due care is the standard of the reasonable prudent man. What constitutes due care depends on the circumstances of each case. Courts recognize that the hazards involved on a construction site, for instance, differ from those elsewhere. The subcontractor's duty, therefore, extends only to such conduct as is customary and usual in that trade or profession. Long Co. v. State Accident Fund, 156 Md. 639, 144 A. 775; Joyce v. Flanigan, 111 Md. 481, 74 A. 818. See generally, 57 C.J.S., Master and Servant, § 610.
The question of the appellant's negligence was properly submitted to the jury. From the evidence, the jury could have found that leaving the open, unguarded hole in the roof was not "in accord with good practice in the trade" but was an abnormal and ususual condition which created an unreasonable risk. Finkelstein v. Vulcan Rail Co., supra; Long C. v. State Accident Fund, supra. The evidence that the appellant cut a hole in a steel roof deck and left it uncovered and unguarded until carpenters installed wooden curbing, with no warning to other workmen, would support the jury's finding that the appellant did not exercise due care for the protection of other employees.
We think, however, that the question of whether the hole in the roof was such an open and obvious condition as would have relieved the appellant of its duty to warn other employees of its presence was an issue for the jury to resolve. The appellee Howell testified that all the other holes on the roof, on the other side of the expansion joint, were "boxed in" and thus readily visible for some distance. He further testified that he "didn't see no boxes or nothing down there" in the roof deck as he turned around and looked back; about 85 feet from the hole, before proceeding to walk backwards pulling the tar and felt spreading machine. Considering Howell's awareness of the presence of other holes in the roof and the manner in which they were made evident, coupled with the lack of any comparable indication of the instant hole from a similar vantage point, the evidence was sufficient for the jury to have found that the hole in question was not such an "obvious danger," equally apparent to both parties, as to impute knowledge of it to the appellee Howell and as to relieve the appellant of liability. Honolulu Ltd. v. Cain, 244 Md. 590, 599, 224 A.2d 433.
A dangerous condition, equally obvious to both defendant and plaintiff, prevents liability by denying the existence of a duty or by creating a defense. "The things that absolve the employer or the owner of land [or the subcontractor] from primary negligence often are the very things; in converse, that cause the employee or invitee to have assumed the risk." Finkelstein v. Vulcan Rail Co., supra. Whether or not
Having determined that the condition herein was not, as a matter of law, so open and obvious as to relieve the appellant of a duty to warn, we determine, conversely, that the appellee Howell was not charged with knowledge of the danger, as a matter of law. He cannot, therefore, be held to have understood the risk of harm to which he was exposed and to have voluntarily assumed it. "[E]very risk is not necessarily assumed by one who works in a dangerous place or at a dangerous occupation. He assumes only those risks which might reasonably be expected to exist, and, if by some action of the defendant, an unusual danger arises, that is not so assumed." Bull Steamship Lines v. Fisher, 196 Md. 519, 77 A.2d 142. Assumption of risk, furthermore, will be left for the jury to decide in all but the clearest cases. Miller v. Michalek, 13 Md.App. 16, 281 A.2d 117; Kasten Construction Co. v. Evans, 260 Md. 536, 273 A.2d 90. We think that, at the very least, whether the risk of an unguarded and unprotected open hole in this expanse of roof deck was assumed or not was a proper question for the jury.
While the same facts may support a finding of either assumption of risk or contributory negligence, traditionally assumption of risk has been held to involve a matter of knowledge of danger and intelligent acquiescence in it, while contributory negligence has been held to be some sort of departure from the conduct of the reasonable man. Prosser, Torts, § 68, p. 441 (4th ed.). Clayborne v. Mueller, 266 Md. 30, 291 A.2d 443. In order to withdraw a case from the jury on the ground of contributory negligence, reasonable minds must not differ that there was some decisive act or omission on the part of the plaintiff which directly contributed to the cause of the accident. Rooney v. Statewide Plumbing, 265 Md. 559,
Judgment affirmed; costs to be paid by appellant.