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Imbraguglio v. Great Atlantic & Pacific Tea Company3/10/2000
into the ground after the defendant had excavated three feet of the earth in which the pole had been erected. The worker, who was wearing a safety belt, was at the top of the pole, pulling on an electric line in order to make a connection when the pole fell. The defendant argued for assumption of risk as a matter of law. This Court said that the plaintiff "assumed no risk in merely climbing the pole." Id. at 544, 273 A.2d at 94. Further, we said that " t would be putting it too high, we think, to say that, as a matter of law, [the plaintiff] knew, understood and appreciated the likelihood or possibility that a third pull [on the electric line to be connected] would cause the pole to break out of the ground and that he voluntarily assumed that risk." Id. at 545, 273 A.2d at 94.
The plaintiff in Hilton Quarries, Inc. v. Hall, 161 Md. 518, 158 A. 19 (1932), was standing on the cab of his truck at the defendant's quarry where the truck was being loaded with a box of stone that was lowered from a boom affixed to a derrick. The load suddenly dropped knocking the plaintiff from the cab roof to the ground where he was further injured by debris. In holding that the plaintiff had not assumed the risk of injury as a matter of law this Court said:
"Defenses of assumption by the plaintiff of the risk of injury , and of contributory negligence on his part, which are much relied on in the case, both refer to the effect of his taking the position on the top of the cab of his truck, and are two aspects of the same contention: That in taking that position he, of his own volition, put himself within the dangers from which his injury resulted; and, having done so, cannot recover for the injury as brought upon him by a wrong of the defendant. In so far as it is contended that, merely by consciously taking the more dangerous of two possible positions, a visitor assumes the risk of injury in that position from any cause, this court disagrees, because the visitor might properly regard the position as attended with some dangers, yet not those from which injury comes to him, and might rightly be satisfied of his ability to cope with the former dangers, yet be justified in ignoring the other possible but unexpected dangers. He might be held bound to anticipate and so to assume dangers from operation in ordinary course, yet not to anticipate and assume the risk of rare casualties such as the derrick operator has described in this case, unless he occupies his position without the permission and contrary to the directions of the proprietor of the premises and the work. And in that connection, the evidence of the quarryman of his warnings and orders to the truck driver are to be considered." Id. at 523-24, 158 A. at 20-21.
Obviously, if voluntarily choosing to stand on the roof of the truck, instead of choosing the alternative of a ground level position, was assumption of risk as a matter of law, there would have been no need for the Court to discuss the evidence about warnings and about the actual cause of the plaintiff's fall.
Here, the shifting of content in the second tier bin can be analogized to the sudden drop of the box of stone in Hilton Quarries, or to the swing in an unexpected direction of a cargo boom with a load of lumber that injured the plaintiff in Bull Steamship Lines v. Fisher, 196 Md. 519, 77 A.2d 142 (1950), where assumption of risk was also held to be a jury question. In the latter case we said that
"every 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 assumed. Whe
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