88 Md. 541 | Md. | 1898
delivered the opinion of the Court.
The plaintiff brought suit against the defendants to recover damages for personal injuries received while repairing a freight elevator on the defendants’ premises. He recovered a judgment of $5,000 and upon exceptions to the granting by the Court of the plaintiff’s first and third prayers and the refusal to grant the defendants’ third, fourth, sixth, seventh, eighth and ninth prayers, and to the overruling of certain special exceptions, the defendants have appealed.
It appears from the record that the defendants, Sigmund Kann and Louis Kann trading as S. Kann, Sons and Company, were the owners of a certain building on South Broadway, in the city of Baltimore, in which they conducted a “ department store.” In this building there were two elevators, one a passenger and the other a
These elevators it is stated were operated by a hydraulic pushing engine; the machinery of both elevators being the same and consisting of a wheel about three feet in diameter over which the cables ran, moving the elevators up and down. The wheel was at the end of a piston rod, and as the passenger elevator ascended to the top floor, the piston rod and wheels attached were elongated, so that it came in close proximity to the frame which supported the machinery of the freight elevator.
The plaintiff is a machinist by trade and was at the time of the injury in the employ of Bartlett and Hayward, Baltimore, also machinists, and had been sent by this firm on the day of the accident, at the request of the defendants, to make certain repairs on the freight elevator, which had been broken.
The declaration states, that on the 8th of December, 1896, the frame or carriage of the freight elevator being broken and out of repair in the cellar or basement, the defendants procured and invited the plaintiff, who was a machinist and iron worker, to come upon their premises for the purpose of repairing and working on the broken freight elevator carriage or frame in the cellar or basement; and that it was then and there the duty of the defendants to exercise ordinary care and prudence to render and keep their premises reasonably safe for the performance by the plaintiff of the purpose or business in hand, and not expose him to unnecessary risk or danger in the premises; and that in default and neglect of their duty in the premises the defendants did not exercise ordinary care and prudence to render and keep their premises reasonably safe for the performance by the plaintiff of the purpose or business in hand, and did expose him to unnecessary risk and danger in the premises, while in the exercise of ordinary care and pru
The case was tried before a jury and the judgment being for the plaintiff, the defendants have appealed.
It will be thus seen, that the. questions presented in this case are the usual ones in damage suits, and they are whether the defendant was guilty of negligence, and second, was the plaintiff guilty of such contributory negligence as would have warranted the Court in withdrawing the case from the consideration of the jury. We have carefully examined the testimony as disclosed by the record, and without undertaking to review it here, except so far as the purposes of this case may require, we are of the opinion that there was evidence legally sufficient to take the case to the jury upon the questions of fact.
The defendants’ sixth, seventh, eighth and ninth prayers, and the defendants’ special exception to the plaintiff’s first prayer, being then practically a demurrer to the evidence, were under the facts and circumstances of this case properly refused by the Court.
And in Indemaur v. Dames, L. R. 2 C. P. 313 — a case in which a plaintiff (like the one in the case here) was on certain premises, on lawful, business in the course of fulfilling a contract, in which both the plaintiff and defendant had an interest—Kelly, C. B., in affirming the judgment of the Court below, said: “ With respect to such a visitor at least, we consider it settled law that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know; and that when there is evidence of neglect the question whether such reasonable care has been taken, and whether there was such contributory negligence in the sufferer, must be determined by a jury as a matter of fact.”
In Cooley on Torts, 718, the law is thus laid down: “ 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
We think there was evidence for the jury in the case now under consideration both on the question of want of due care on the part of the defendants, and of negligence on the part of the plaintiff, and this being so, the Court was bound to submit the case to the jury.
The plaintiff testified: “ That when he returned to the store he saw Mr. Kann, who was standing in the store on the first floor between the cellar steps and the store door, and was asked by him where that man was who had been working on the elevator in the morning, and answered that he did not know anything about that man; Mr. Kann then told him to hurry up and get to work on the elevator, and he went down into the cellar and went to work oh the elevator, and had almost finished putting the straps and belts on when he was caught; that he supposes he was at work in all about ten or fifteen minutes before he was hurt; that while he was working on the straps he had his face towards the freight elevator, the one he was working on, and that while he was so engaged he was caught by the piston of the passenger elevator, which he could not hear, and did not know of, he didn’t know it was dangerous or he would not have worked there, it ran so easily, and crushed him; that he had a drift pin in one hand and a wrench in the other, and standing with his back to the passenger elevator; he was tightening up the bolts on the freight elevator; that he was assisted in his work by a fellow-workman named Winkler, who helped him to straighten up the nuts, he on one side and Winkler on the other; that he knew it was Mr. Kann he saw in the afternoon when he returned to the store, because he
Upon redirect examination the plaintiff testified that when he said that both of the elevators were in the same “ pit,” he meant they were both in the same cellar; and in answer to the question, “ you say in answer to Mr. Marbury, that when you went into the store, when you saw Mr. Kann, you told him to stop the machinery”; the witness answered, “yes sir, I told him I was going to work on the elevator in the cellar,” and that the occasion was the time of his second visit to the store in the afternoon of the day of the accident; that he thought the wheels of the freight elevator had been taken away before he went to work there. The testimony further shows: that the plaintiff was putting in the bolts with his right hand at the time of the accident; was putting the nuts on and tightening them.with a wrench; that witness Winkler and the plaintiff were facing each other, and that the plaintiff had his back turned towards the passenger elevator; and that he was about fifteen or twenty minutes engag-ed in this work, and while he was so engaged the piston rod of the passenger elevator came extending back to where they were at work and caught the plaintiff and jammed him up against the carriage of the freight elevator on the cross bar.
There was other evidence on the part of both plaintiff and defendants, one tending to show negligence and the other contributory negligence, but as these were questions for the jury we need not further consider it here.
The law of the case was fairly and fully submitted by the Court, in the plaintiff’s first and third prayers, and in the defendants’ first, second and fifth prayers. The defendants’ third and fourth prayers were properly rejected and we do not understand that it is contended that they should have been granted.
For the reasons we have given the judgment will be ' affirmed with costs.
Judgment affirmed.