139 A. 557 | Md. | 1927
Isaac Benesch Sons, Inc., the appellant, conducts a department and general merchandise store on Gay Street in Baltimore, of which the appellee, Ida May Ferkler, had been a customer for thirty years. On November 30th, 1925, the appellee had been at the store, which was very well known to her. She had made her purchases and was on her way out. Just as she was turning from a cross aisle into the right aisle leading to the exit, she slipped and fell, sustaining painful injuries, serious enough to keep her in bed for five weeks and to cause her, according to the testimony of herself *682 and members of her family, pain and nervousness to and until the trial, sixteen months after the accident. The appellee testified that, immediately after the fall and before she was lifted and taken to a rest room in the store, she saw that the floor was "dark and mucky and smeary, like an oiled floor would be where the oil was not dried" and that "the oily condition of the floor" caused her to fall. In answer to a question of the court, "Well, it might have been stained that color," the appellee said, "No, it was oiled. My gloves and everything was full of it." From a verdict and judgment for the plaintiff (appellee), the defendant appeals.
There are three exceptions, two to the evidence and one to the granting of the plaintiff's three prayers, the overruling of special exceptions to each of them, and to the refusal of the defendant's A, first, second, third, fourth, eighth, ninth and tenth prayers.
The first exception was to a question to Dr. Hemmeter, the attending physician, as to the probable effect of the injuries testified to on the nervous condition of the appellee and on her ability to perform her household duties, the answers to which were that they would leave her in a nervous condition and lessen her ability to perform her household duties. These were opinions, apparently, from the evidence, based on the personal observation of the attending physician, the value of his opinion to be tested on cross-examination (Jones v. Collins,
The appellant's A prayer is a variance prayer, wherein it is stated that the proof does not measure up to the allegation of the declaration that the plaintiff "was caused to slip and fall due to the floor having been freshly oiled and the failure of the said defendant to allow sufficient time to elapse for the proper drying of the oil that had been placed thereon." The testimony of the appellee herein quoted substantially agrees with the allegation; in fact, she proved a stronger state of facts than she alleged.
The appellant's first and second prayers asked for a *683 directed verdict because of lack of evidence of negligence, and likewise the third, because of the "undisputed evidence" of plaintiff's contributory negligence.
This court, in Kann v. Meyer,
"Whether a woman who, while in a shop where she had no reason to apprehend danger, keeps her eyes fixed upon articles which are put on exhibition to attract purchasers, rather than upon the floor in search of pitfalls, uses the ordinary caution and vigilance which persons of reasonable prudence would be expected to use under the circumstances, is a question of fact for the jury, and not of law for the courts." Hendricken v. Meadows,
"The question of ordinary care on the part of the party injured is not to be determined in an abstract way, but relatively, as it may be connected with, and dependent upon, the duty and obligation of the defendant." Balto. O.R. Co. v. Davis,
Applying these authorities to the facts as testified to, there can be no other conclusion than that the case should have been submitted to the jury.
The defendant's fourth, fifth, sixth, seventh and eleventh prayers submitted to the jury the questions of the contributory negligence of the plaintiff, the burden of proof, and the duties of the respective parties. The rejected eighth, ninth and tenth were simply repetitions of elements contained in other granted prayers which fairly presented the defendant's case to the jury, and we find no error in the court's rulings on the defendant's prayers.
The plaintiff's (appellee's) first prayer contained a recital *684
of the facts testified to upon which she relied for a recovery, and submitted the appellant's contention of contributory negligence as favorably as did its prayers. To this prayer the appellant specially excepted on the ground that there was no legally sufficient evidence "that said floor had been oiled, and that the said oil applied to the floor was not dry at the time of the plaintiff's said injury." The court overruled this exception for the reason that the appellee had testified that immediately after she fell the floor looked "dark and mucky and smeary, like an oiled floor would be where the oil was not dried," and that this is what caused her to fall. These were facts from which the jury might conclude that the appellant had been negligent. It was not the mere fact that the floor was oiled and the appellee fell that entitled her to recover; it was the condition in which the floor was left as a result of the oiling that was submitted to the jury, and took it out of the rule laid down in the case ofSpickernagle v. Woolworth,
The plaintiff's second prayer was specially excepted to and the exception overruled. This is substantially the plaintiff's third prayer in Hochschild, Kohn Co. v. Cecil,
The appellee's third prayer is a damage prayer, to which there was a special exception on the ground that there was no legally sufficient evidence to show that "the injuries complained of will be permanent in their effect." In the case of Howard County v.Pindell,
For the reasons herein given, the judgment will be affirmed, with costs.
Judgment affirmed, with costs.
