State Ex Rel. Arnold v. Amon Green & Co. , 95 Md. 217 ( 1902 )

This is an action to recover damages for injuries which resulted in the death of the husband of the plaintiff.

It appears from the testimony that the defendants, Amon Green Company, are dealers in woolen yarns in the city of Baltimore, and that John Arnold the plaintiff's husband had been in the habit for some years of visiting their establishment at No. 5 West German street for the purpose of purchasing small lots of yarn which he retailed to his customers. The defendants occupied the basement, first and fourth floors of the building. The second and third floors were occupied by other persons with whom the defendants had no business relations. The only means of access from the first to the fourth floor is by the elevator — the stairway having been closed. The elevator, as described by the witnesses is a water-power elevator; and as it goes up to the upper floors, it carries with it the doors or coverings of the hatchways. And as it reaches each floor it lifts the covering or door and takes it up to the top; as the elevator comes down it leaves these doors or portions of the floor at their appropriate places thus closing the aperture through which it moves in ascending and descending. The elevator was used for both freight and passengers. It consisted of an open platform with posts or stanchions at each corner and cross timbers at the top. The cables which supported the weight of the elevator were fastened to these cross timbers and passed through holes in the middle of the platforms or movable doors over the hatchways.

On the day of the accident Arnold called at the defendants' place of business to get a lot of goods with which to fill several small orders he had received, and after some conversation with Mr. Green, one of the defendants, they together with the porter got upon the elevator and went to the fourth floor to inspect the goods which it was supposed would be suitable for Arnold's purposes. There he was left by the defendant and the porter for the purpose of assorting and putting the goods in packages, with the understanding that when he wanted to come down he was to give the signal and the elevator would be sent up for him. In addition to these facts we learn from the testimony of the porter, the only other witness who testified in addition to Green, that he went to the fourth floor a few minutes before twelve o'clock to ascertain if Arnold was ready to go down, and finding that he had not finished, the porter told him that when he wanted to use the elevator he should shake one of the ropes to give the signal below. The witness says that the rope he referred to and which he instructed Arnold to shake, was "the first rope near where he could reach, not the check, but the brake rope." The elevator was in one end of the room and Arnold was working at the other end, a distance of about eighty feet away, so that it is not certain from the testimony whether he clearly apprehended which rope he was to use to give the signal. But this fact does not appear to be material for the signal was in fact given and was distinctly heard down stairs. After the conversation just mentioned the porter got on the elevator and descended to the first floor — and sometime thereafter, exactly how long the testimony does not disclose, but before one o'clock, the signal agreed upon was heard by the porter. He immediately went to the elevator and called up that he was coming. The witness thus describes what then took place: "I went on the elevator, and went up stairs for Mr. Arnold; when I got up there the guard was down and I was looking for him, but he wasn't there; so I went around to where he was working, walked around, but didn't see him; then I came around the other way, and it just struck my eye at the same time that the platform over the elevator was a little something out of shape there, so I went back, and climbed over the goods alongside of the elevator and let the elevator come down, and when I looked up I saw the old gentleman in there. So I let the elevator come down quick so that the trap doors would be even with the floor, and lifted him out."

On the fourth floor where the accident happened the opening through which the elevator came was in the corner of the room about four feet from the walls and near the windows. This opening was protected by a railing as high as a man's waist, the front or entrance railing being movable or shifting to allow access to the elevator platform. When the porter went up the second time he found the shifting rail down. The evidence does not disclose who opened it.

Arnold died within a few hours after the accident and this suit was brought by his wife to recover damages sustained by his death.

The plaintiff produced two witnesses, one of the defendants and one of their employees. At the close of plaintiff's testimony her counsel asked the Court that the jury be sent to inspect the premises of the defendants, and especially the elevator described in the evidence, and the place where the deceased was injured.

But the learned Judge below held that such inspection could be ordered only by consent of parties, and in the absence of the consent of the defendants, the motion was overruled. This ruling forms the first bill of exceptions.

The defendants offered no evidence and at their instance the Court took the case from the jury. This ruling constitutes the second bill of exceptions.

The plaintiff has appealed.

Two questions are thus presented, first, was there error in the refusal of the Court in the absence of the consent of both parties to allow the jury to visit the premises where the accident happened; and, second, is there any evidence in the cause legally sufficient to show negligence on the part of the defendant.

1. By the two Acts of 1886, chapter 317 and 415, Art. 75 of the Code, "Pleadings, Practice and Process," was amended by the addition of two sections. The section enacted by chapter 317 and which is now codified as sec. 93 of the same Article, and relied on by the plaintiff is as follows: "It shall be lawful for the Court in any action at law * * * * upon application of any party thereto * * * to make any order for the detention, preservation or inspection of any property being the subject of such action * * * *; to authorize any person * * * * to enter upon or into any land or building in the possession of any party to such action * * * *; to authorize any samples to be taken or any observations to be made or experiment to be tried which may seem necessary or expedient for the purpose of obtaining full information or evidence." The other section which was enacted by chapter 415 of the Acts of the same year reads thus: "Any party to a cause or action at law or in equity shall be at liberty to apply to theCourt or a Judge thereof for a rule or order for the inspection by the Court or jury of any real or personal property, the inspection of which may be material to the proper determination of the question in dispute, and it shall be lawful for the Court or Judge, if they or he think fit, to make such rule or order upon such terms as to costs and otherwise as such Court or Judge may direct."

When the Code now in force was adopted in 1888 the last named Act was entirely omitted, so that the present section 93 of Art. 75, although it purports to be a codification of both of these Acts, it is an exact reproduction only of the first, namely the Act of 1886, ch. 317.

The contention of the plaintiff is that by the proper construction of sec. 93 of Art. 75, it was, at least, within the discretion of the trial Court, whether it would allow the jury to visit the premises, and that having refused to exercise that discretion an appeal lies from such refusal. But we cannot agree to the correctness of this construction of sec. 93. In our view this section gives the trial Court no power, no discretion in the matter of allowing the jury to inspect the premises, and hence the Court below properly overruled the plaintiff's motion. It may be conceded that some of the language used in this section is broad enough to include the jury. Thus the Court may authorize "any person or persons" to enter, c. But at the very same session when this section was enacted chapter 415 was passed by which, as we have seen, it was provided that any party to an action at law or cause in equity should be at liberty to ask for a rule for the inspection by the Court or jury of any real or personal property, c., c. If the Legislature intended by chapter 317 (sec. 93) to include the jury, it would have been idle to pass the subsequent Act. It can hardly be supposed that if the Legislature intended by section 93 to inaugurate such a radical departure from the uniform and settled practice it would not, as it did in the subsequent Act, use language which leaves no room for doubt. So far as we know the practice throughout the State has conformed to the view announced by the Court below, and juries have not been allowed to visit and inspect premises except on the application and consent of both parties since the Code of 1888 was adopted.

But if the action of the Court in taking the case from the jury was not free from error yet any inspection by them of the premises would have been entirely fruitless, for if there was no legally sufficient evidence before them of the defendant's negligence there was nothing for them to pass upon.

2. It will be necessary, therefore to examine the evidence in order to ascertain whether the plaintiff has made out her case by evidence legally sufficient for that purpose.

We have already rehearsed the main and material parts of the testimony, and it only remains to state the well settled rules of law which governs in cases like this and apply it to the facts which are conceded to be true by the instruction which the Court granted to the jury. In Kann v. Meyer, 88 Md. 541, it is said, quoting from Cooley on Torts, 718, "If one expressly or by implication invites others to come upon his premises whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger and to that end he must exercise ordinary care and prudence to render the premises safe for the visit. And this rule obtains and is recognized both in England and this country." It is also true as was said by BOVILL, C.J., in Chapman v.Rothwell, El. Bl. El. 168, "that persons inviting others on their premises are answerable for anything in the nature of a trap." But in our opinion this statement of the rule has no application to this case, for there is no evidence whatever that the injury was caused by anything hidden or in the nature of a trap. Indeed it appears from the evidence offered by the plaintiff herself that her husband had been visiting the warehouse of the defendants several times a year during a period of nine or ten years, on the occasion of which visits he had used this identical elevator. It must be assumed, therefore, that he was quite well acquainted not only with the premises themselves but also with the elevator and the method of its operation.There is an entire absence of any proof that the elevator itselfor the machinery by which it was moved was defective or out ofrepair. The evidence is clear and strong that there was abundance of light, the windows being close to the elevator, and but for this unfortunate and mysterious accident it might have been supposed that it was impossible for a man with faculties unimpaired to make any mistake as to to the exact location of the elevator, for as we have seen there was a railing around the aperture and the cable ran through the centre of the movable platform. While everything else about the case is left in darkness, one fact appears to be clear, namely that the deceased must have been standing on this platform when the elevator ascended, for otherwise it would have been impossible for him to have been carried up on the top of the elevator and injured as he was. There appears, therefore, to be no evidence of negligence on the part of the defendants. And whatever negligence there was must be attributed to the unfortunate man himself. In the case ofTreadwell v. Whittier, 80 Cal. 575, which is cited without being approved in toto by this Court in Wise v. Ackerman,75 Md. 375, it is said that a plaintiff injured through the fall of an hydraulic elevator operated by the defendants in which he is being carried as a passenger need only prove that he sustained injury by the breaking of the machinery by which he was carried, and that such machinery was under the control andmanagement of the defendants, in order to make a case raising apresumption of negligence on the part of the defendants * *." The burden is then thrown on the defendants to show they were not guilty of negligence. But we have no such state of case before us on this appeal. As we have pointed out the injury was not caused by any defect in the elevator, the manner of running it or the breaking of the machinery. All we can discover by the evidence is that the injury happened, but how it happened we are not informed, and unless we are prepared to adopt the suggestion that the maxim res ipsa loquitur is applicable to this case or to hold that the mere happening of the accident without any evidence to show it resulted from want of care on the part of the defendants raises a presumption of their negligence the conclusion is inevitable that the case was properly taken from the jury. In 2 Shearman Redfield on the Law of Negligence, sec. 704, in discussing the subject of liability to businessvisitors, it is said that the mere fact that one is injured while on the premises is no evidence of negligence on the part of the proprietor. Benedick v. Potts, 88 Md. 56. HOLMES, C.J., says in Pinney v. Hall, 156 Mass. 225, which was an action by a customer to recover damages for injury caused by falling down a stairway: "This is a naked case of a person tumbling downstairs and unless it can be said that res ipsa loquitur applies the Judge was right in his ruling. What is meant by res ipsaloquitur is, that the jury are warranted in finding from their knowledge as men of the world that such accidents usually do not happen except through the defendant's fault and therefore in inferring that this one happened through the defendant's fault unless otherwise explained. But that depends on the kind of accident. With regard to this kind we are of opinion that a jury would not be warranted in laying down such a premise or in drawing such an inference." Larkin v. O'Neill, 119 N.Y. 225, was also an action for damages by a customer for injuries caused by falling downstairs. During the course of the opinion delivered by O'BRIEN, J., he says quoting from Crafter v. Metropolitan Railway Co., (L.R.) 1 C.P. 300: "The line must be drawn in these cases between suggestions and possible precautions, and evidence of actual negligence, such as ought reasonably and properly to be left to a jury. It is difficult in some cases, to determine where the line is to be drawn, but here I have no hesitation in saying that there was "no evidence which could properly be left to the jury."

Here we have in evidence nothing but the injury to the deceased and that in some unaccountable way he got upon the trap-door and was found on the top of the elevator fatally injured. It cannot be said there was negligence in bringing the elevator up too suddenly, for there is no evidence to that effect, nor that it was brought up without warning, for the signal agreed upon was given by the injured man, and the man in charge of the elevator gave notice that he was coming. Nor can it be said there was negligence in not stopping the elevator, for the injured man made no outcry and he was not discovered until after the accident. Nor can it here, any more than in the case of the State, use ofc., v. P.W. B.R.R. Co., 60 Md. 555, where it was in evidence that a man was killed on a railroad bridge or in the case of B. P.R. Co. v. Abbott, 75 Md. 152, where a man was killed in a tunnel, be said that the defendants were negligent. In neither case, nor in the case at bar, did any one see the accident. It is not pretended here that the elevator in its construction or machinery was out of repair or that its use in the way it was used was dangerous to one who was accustomed to it, as was Mr. Arnold. There is no room here, therefore, for the application of the maxim res ipsa loquitnr, for the evidence offered by the plaintiff showing the injury, shows at the same time that the defendant is free from blame. For a full and interesting discussion of this maxim and its application see the case of Benedick v. Potts, supra, opinion by McSHERRY, C.J.

Judgment affirmed.

(Decided June 17th, 1902.)