tickets for the purchase of products given them by their dispatchers. The trucks then would proceed to the aisles where they would receive the products from overhead batch and cement hoppers. Maloney was billed by Potomac monthly according to the amount of its purchases.
On June 19, 1964, John G. Baumann, plaintiff in Baumann v. Maloney Concrete Company, 278 F. Supp. 463 (D.D.C. 1967), was standing on a temporary platform above an aisle (No. 1) on his employer's premises, which aisle was used to load concrete and cement trucks. Mr. Baumann was fixing a batch hopper on a scaffolding he had erected with the assistance of other fellow employees. The scaffolding in question consisted of a 2" x 10" x 16" board which was approximately 10' above the floor of the aisle. The aisle ran north and south. The scaffolding on the west end was supported by one 4" x 4" oak frame approximately 10' high and on the east end by a crate supported by a 12" by 12" oak block which in turn was supported by the loading platform. The component parts were fastened together. The scaffolding such as described above had been in use for at least 35 years at the Potomac plant and it was designed specifically for fixing batch hoppers.
One Paul R. Pope, a former employee of Maloney Concrete Company, was operating one of the Maloney trucks and came into aisle No. 1 of Potomac's plant on the date aforesaid to obtain a load of concrete. Mr. Pope saw two men, one of whom was John G. Baumann, standing on the scaffolding and working on the batch hopper directly in front of him. The truck ahead of Mr. Pope's truck had no difficulty in passing under the scaffolding and several trucks had gone through aisle No. 1 that day.
Before continuing north in the aisle Mr. Pope had removed the circular drum lid or cover over the hopper part of the cement truck and placed it on his truck in a nearly upright position wedged between the mixer drum and the guardrail, and protruding above the top of the truck. Without making any determination as to whether his truck, together with the cover lid in the position that he had placed it in, could pass safely under the scaffolding, Mr. Pope drove off down the aisle in a manner described by the witness Joseph Short as "hot-rodding it" and the upright lid on the truck struck the scaffolding dislodging Mr. Baumann and causing him serious injuries.
During the course of the Baumann trial as set forth in the pretrial order and later in the opinion of the court, among other defenses, it was contended that the plaintiff John G. Baumann was guilty of contributory negligence for failing to erect a safe scaffolding and/or to close off the aisle while he was working on the batch hopper. However, at the conclusion of the evidence, the court, through Judge Holtzoff, directed a verdict in favor of the plaintiff stating its reasons therefor:
"It is argued by able counsel for the defendant that there are questions of contributory negligence and assumption of risk which should have been submitted to the jury. It is claimed that it was contributory negligence and also constituted assumption of risk to permit vehicles to pass under the scaffolding instead of closing off the aisle while the scaffolding was being used by persons working on it. It is contended that the plaintiff had sufficient authority to have directed a closing of the aisle. The Court is of the opinion that it cannot be said that the fact that the aisle was not shut off and closed was a proximate cause of the injury that the plaintiff has sustained. The proximate cause was the fact that the truck struck the scaffolding. It was the duty, of course, of the driver of the truck to have made certain that he could clear the scaffolding before he drove under it." Baumann v. Maloney Concrete Company, 278 F. Supp. 463, 464 (D.D.C. 1967).