49 A.2d 742 | Md. | 1946
Lead Opinion
In May, 1944, the appellants, as hereinafter known, Samuel L. Sezzin and Blanche Sezzin, his wife, purchased the premises at 811 North Charles Street, Baltimore. The appellee, as hereinafter known, Rita M. Stark, rented from them on March 8, 1945, the second floor rear apartment. The rear of this property was divided into three furnished apartments, one on the first floor, one on the second floor, and one on the third floor. These were known as the rear apartments as distinguished from those in front. On the south side and about midway of the house an air and light shaft ran from the ceiling of the first floor apartment up to and above the level of the roof, where it was capped with a skylight. The bottom of this shaft was located on the same level with the ceiling of the first floor apartment and consisted of a *244 frame with three panes of glass. For the purpose of this case this frame with the three panes of glass will be known as the bottom of the shaft. The frame was attached to the ceiling by hinges and could be opened and closed by pulling or releasing a cord. The dimensions of the shaft were five feet by two feet on the inside. This was the only means of getting air and light into these rear apartments. The rooms on the second and third floors directly above the first floor room, where the window frame was in the ceiling, each had a window opening into the shaft, the sills of which were three feet three inches above the floor. From the sill of the window on the second floor, opening into the shaft, to the ceiling of the first floor room and the bottom of the shaft was a distance of four feet. Just outside of these windows on the second and third floors leading into the shaft, and directly under them, were clothes hampers fastened on the outside of the windows in the shaft by hooks. They were placed there by a former owner of the apartment house to provide a place for the tenants to store their soiled clothes. There was nothing under these hampers to catch any clothes that might fall out of them, except the bottom of the shaft. There was no electric light in the airshaft. The only light entering it came from the skylight in the roof, or from electric lights in the two apartments which it served.
Rita M. Stark, the appellee, was a married woman whose husband was temporarily absent with the Armed Forces of the United States. She went to this house on March 7, 1945, looking for a furnished apartment and was shown the second floor apartment by Mrs. Sezzin, one of the appellants. She saw and was shown the location of the clothes hamper in the shaft on the outside of the window. Mrs. Sezzin did not call to the appellee's attention the fact that there was a glass floor at the bottom of the shaft beneath the clothes hamper. There was no wire construction over the bottom of the shaft. On March 8, 1945, when appellee rented the apartment from Mrs. Sezzin she was given a list of the household *245 articles. Among these was a long-handled wall brush and a few other things. Mrs. Stark could not find these at first but eventually found them "down in the left hand side of the shaft," which she removed and did not replace there. The appellee had occasion to look into the shaft from time to time and saw at the bottom, a distance of only four feet, "what appeared to be a solid floor." She said it was quite dusty down there and she had never seen light coming through the bottom of the shaft. The janitor testified that he had never cleaned the bottom of the shaft since the appellants bought the apartment house in May, 1944.
A Mrs. Hipp, the tenant of the first floor apartment, testified that she got some light through the bottom of the shaft, "she didn't get a bright light." She said that enough light came through in the daytime so that she could get anything she wanted out of the room without turning on the electric light. She obtained no air through the shaft. She said that she had not opened the bottom of the shaft since the appellants had owned the property because soot came through. The third floor tenant, Miss Mauverine Miles, testified that in looking down the shaft from the third floor she could not tell what kind of material covered the bottom of the shaft.
On the evening of July 6, 1945, two girls, Miss Miles and a Miss Hilton, both of whom occupied the third floor apartment directly above that occupied by the appellee, knocked at appellee's door and told her that in removing some clothes from their hamper they had dropped some articles down alongside of their clothes hamper and this clothing had fallen on the bottom of the shaft. They asked appellee if they could get these. The appellee and the two girls then went into the room leading into the shaft. They looked into the shaft which was dark. However they could see the clothes, four feet away, lying at the bottom of the shaft. One article was on the right-hand side and the other was on the left-hand side. These articles of clothing had dropped at different times. The appellee volunteered to get down in the shaft and get *246 the clothing as she was cleaning her apartment and had on working clothes while the two girls were dressed in "good clothes." The two girls told appellee not to do that because they did not want her doing things for them. Miss Miles testified that Miss Hilton told the appellee, "`I thing it might be glass,' or something to that effect, her exact words I am not sure." Miss Hilton, being out of the State, did not testify at the trial. The appellee testified that as she was getting in the shaft Miss Hilton said to her, "Be careful, there may be some glass down there." Appellee said that the reason she went in the shaft was "because to my mind there was a solid floor and it had never given the appearance of being anything else. So they dropped clothing and I did not see any reason why I should not go down and recover their clothing."
Appellee sat on the window sill, turned her feet around and let herself down into the shaft. She picked up the article of clothing on the right-hand side and handed it to the girls, who then called her attention to the other article over on the left. She moved one foot to get over to the left side and then the bottom of the shaft went through. She landed on the floor of the first floor apartment where it was dark until the light was turned on. The two girls came down from the second floor apartment. Mrs. Hipp heard the noise and she and her husband went into the room and he turned on the light and they found the appellee sitting on the floor. Mrs. Hipp testified that the appellee then said that she did not know why she did such a silly thing and that she was not in the habit of doing things like that. Appellee denied she made this statement. The appellee was taken to the hospital in Baltimore where it was found that in addition to other injuries her right leg was fractured. Her left foot was operated on. She remained in the hospital in Baltimore until July 27, 1945, when she returned to her home in Miami, Florida. At the time of the accident appellee was employed as a stenographer at wages of $45 a week. She did not return to work until early in January, 1946. *247
Suit was entered by appellee against appellants on November 25, 1945, which resulted in a verdict by a jury for the appellee in the amount of $1,000. From the judgment on that verdict the appellants appeal.
The appellants assign as error the failure of the trial court to grant their C and D prayers. These prayers in effect asked the Court to instruct the jury, (1) that, under the evidence, the appellants were not guilty of primary negligence directly contributing to the accident, and (2) if they were, the facts showed as a matter of law that appellee was also guilty of negligence directly contributing thereto.
This Court is not called upon to decide whether the appellants were guilty (1) of primary negligence or (2) whether the appellee was guilty of contributory negligence. It is simply our duty to decide whether there was evidence legally sufficient to give the jury the opportunity to decide these questions upon the facts presented and the material inferences of facts therefrom.
Summarizing, there was evidence that the landlord provided the hampers outside of the windows in the shaft for the soiled clothes of the tenants. There was no screen or other device provided to catch any articles which might fall out of the hampers other than the bottom of the shaft. The bottom of the shaft had not been cleaned for at least about fourteen months. The janitor was never instructed by the appellants to clean this nor was appellee told by the appellants that the bottom of the shaft was a glass floor. The janitor had cleaned the shaft for a former owner. The bottom of the shaft had never been opened since appellee was a tenant there. The appellee said that the bottom of the shaft, four feet away, appeared to her to be solid. She had only looked down in the shaft. She had never been in the first floor apartment. Miss Miles, the third floor tenant, said that in looking down the shaft, she could not tell what material covered the bottom. It was natural to suppose that clothing might fall out of the hampers or the windows to the bottom of the shaft. No method was provided *248 by the landlord to retrieve these. The appellee found some of the furnishings of the apartment, supplied by the landlord, stored in the shaft when she moved in. From this she might have inferred that the bottom was solid and would hold her. The record does not show the size of the appellee but it was admitted in the argument that she was a small woman. This Court is of opinion that there was sufficient evidence of primary negligence on the part of the appellants to submit that question to the jury. We are further of opinion that there was not sufficient evidence of contributory negligence on the part of the appellee to rule as a matter of law that the case should be withdrawn from the jury.
This is not a case where the tenant rented the whole premises. In the case of Smith v. State, to Use of Walsh,
In Gray v. Elgutter, 1926, 5 La. App. 315, the plaintiff was held a trespasser when, having been employed by two tenants to clean their apartments, she entered a vacant apartment that led to a skylight and she fell through the glass. In the case ofCulbreath v. M. Kutz Co., 1927, *249
In the case of Owners' Realty Co. v. Richardson,
It is said in Restatement on Torts, Negligence, Section 360, "Parts of Land Retained in Lessor's Control Which Lessee is Entitled to Use": "A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have madethe condition safe." (Italics ours.)
The case of Bernstein v. Karr, 22 N.J. Misc. 1, 34 A.2d 651, also follows this doctrine where it is said, 34 A.2d at page 653, "This doctrine is set forth in Barthelmess v. Bergamo, supra, 103 N.J.L. [397], at page 398, 135 A. at page 794, thus: `The sole departure from the fundamental rules, except where thelocus in quo was in essence a nuisance, has been necessitatedby the construction of tenement or apartment houses, intended forthe habitation of many tenants, in which situations differing entirely from any comprehended by the rural conditions of habitations at the common law, the courts have found it necessary to recognize the novel housing requisite incident to modern life, by treating hallways and stairs as common ways or appurtenances, kept and maintained by the landlord, for the purpose of affording reasonable entrances and exits to and from the demised premises; and for a failure to reasonably maintain which, in the event of damage to occupants and others lawfully using the premises, the landlord has by the general trend of authority been made liable.'" (Italics supplied here.) It is further said at Section 360, supra paragraph (c): *251 "* * * The rule stated in this Section applies not only to the hall, stairs, elevators, and other approaches to the part of the land leased to the lessee as a flat, office or room in a tenement or boarding house, but also to such other parts of the land or building to the use of which by express or implied terms of the lease the lessee is entitled, usually in common with other lessees, such as a bathroom in a boarding house and the roof or yard of a tenement building or apartment house."
In Dobbie v. Pacific Gas Electric Co., 1928,
"A possessor of land, who leases a part thereof and retains in his own control any other part which is necessary to the safe use of the leased part, is subject to liability to his Lessee and others lawfully upon the land with the consent of the Lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the Lessor's control, if the Lessor by the exercise of reasonable care,
"(a) could have discovered the condition and the risk involved therein, and *252
"(b) could have made the condition safe."
This doctrine is affirmed in the case of Ellis v. McNeese,
It was held in the case of Lindsey v. Leighton,
In the case of Masek v. Bubenheimer, 1938,
In the case of Northern Trust Co. v. Elman, 6 Cir.,
The case at bar is not one of a patent defect as in the cases of Fulton Building Company v. Stichel,
The Baltimore City Code, Section 7664, offered in evidence in this case, provides "Protection of Sky-lights. Sky-lights glazed with plain glass, except over photographic studios, shall be protected on the outside by a wire screen. Sky-lights with plain glass located over passage-ways, stairways, restaurants, and places of public or private assembly, shall also be protected on the outside by a wire screen. * * *." As was pointed out by the trial judge in his charge to the jury, the violation of this ordinance alone, if the jury found it was violated, did not give rise to a cause of action for which the plaintiff could recover. She could recover only if the violation of the ordinance was the proximate cause of the accident. Owings v. Jones,
This Court does not feel that the facts here were such that the trial judge should have ruled that the appellee was guilty of contributory negligence as a matter of law and thereby have taken the case from the jury. We think that the minds of ordinary men might differ as to whether the appellee was guilty of contributory negligence. Edelman v. Monouydas,
This Court has frequently said, as in the case of Taxicab Co.of Baltimore v. Emanuel,
Appellee cross-appeals from the refusal of the trial judge to charge the jury that the salary lost by the appellee, due to this accident, and her medical expenses were proper items for them to consider in reaching the amount of their verdict. Appellants claim, as the appellee was a married woman living with her husband but temporarily separated because of his service with the Armed Forces, that the husband alone can sue for *255
these items. As pointed out in the case of Furstenburg v.Furstenburg,
In the case of Furstenburg v. Furstenburg, supra, it was pointed out that a practically identical federal statute applying to the District of Columbia was construed by the Supreme Court of the United States in a suit by a wife against her husband for assault and battery (Thompson v. Thompson,
In Farver v. Pickett,
In the instant case the appellee made a proffer. The Court said, "Let the record show that counsel for the plaintiff offered to prove medical expenses and salary loss. The Court declines to let the jury have that evidence. * * *" Under the authority of the case of Farver v. Pickett, supra, if it can be shown that the wife either expressly or impliedly assumed the obligation for the medical expenses or has paid for them, she should in her own name be allowed to recover for those items.
In Neudecker v. Leister,
In 151 A.L.R. at pages 502-505, the question here before us is extensively reviewed and it is there stated that, although at common law the earnings of a wife acquired in a separate business or received for services to persons other than her husband, belonged to the husband and he alone could recover for loss thereof because of personal injuries to her, the married women's statutes have placed her in the same position as a man to recover for services, such as those in the instant case, in her individual capacity and the husband's consent to the wife engaging in separate business or employment is not a condition precedent. This seems to be the modern trend of a majority of the courts.
In Riley v. Lidtke,
The best rule seems to be that under the married women's act the wife has been placed on the same footing as her husband with respect to her property and personal rights. It is the duty of the husband to support his family. The wife owes the husband her services in caring for the household. Her services and work in caring for the household belong to the husband to compensate for his support and protection. When the wife has taken upon her shoulders all or part of the husband's burden and enters into a separate business or employment, the law presumes that the wife performs the duties and renders the services toward her family growing out of the marriage relation. The money she receives for work outside of the household therefore belongs to her.
It must be borne in mind that the earnings of the appellee as a stenographer were earnings which she made outside of the home and had no relation to her duties there. As above set forth, under the married women's act, Article 45, § 5, supra, the wife was given power to contract and therefore had the right to enter alone into the contract of employment and as specifically set out in the quotation supra from the case of Furstenburg v.Furstenburg, she could sue separately for wrongs independently of contract. We are therefore of opinion that the appellee in this case should be allowed to prove her loss of earnings as an item of damage in this case.
There is no difficulty in this case in separating the claim for medical services given on the wife's credit alone or paid by her alone, nor in proving her loss of earnings by reason of this accident. It is provided by Code, Article 5, § 25, "If it appears to the Court of Appeals that a reversible error affects a severable item or part only of the matters in controversy, the Court may direct final *259
judgment as to the remaining parts or items thereof, and may direct a new trial as to the said severable part or item only." In pursuance of this provision since the question of liability of the defendants to the plaintiff for negligence has been established the judgment will be reversed only for the purpose of allowing appellee to prove loss of earnings and medical expenses as above set forth, as to which a new trial will be awarded. As to the judgment of $1,000, it will be affirmed and directed to be finally entered. Bucher v. Federal Baseball Club,
Judgment affirmed in part and reversed in part and new trialawarded. The appellants to pay the costs.
Dissenting Opinion
Appellee rented the second floor rear apartment at 811 North Charles Street, Baltimore, furnished, from the appellants, on March 7, 1945. In this apartment was a small dressing room which had a window in it leading to a light and air shaft which extended up to the third floor and down to the ceiling of the first floor. The bottom of the shaft was a three pane window in the ceiling which could be opened by means of a pulley by the occupant of the first floor apartment. In this shaft, on the outside of each of the windows leading to it from the third floor and from the second floor, were small soiled clothes hampers. The appellee received certain household articles under her lease, among them a long-handled brush and some other things which she did not remember, which she found were outside of the window and down in the shaft. There is no evidence as to how they got there, nor that they were usually kept there, and she removed them and put them in the kitchen with her other household utensils. She used the hamper for her soiled clothes from time to time. On July 6th, after appellee had been in the apartment for four months, *260 two girls who occupied the apartment above her, came to her apartment and said they had dropped some articles of laundry down in the shaft and asked if they could get them. The three of them went into the dressing room and looked down and saw the articles. The appellee was cleaning up her apartment and was not dressed, while the other parties had on good clothes. So appellee volunteered to get down into the shaft. She sat on the window sill, which was three feet three inches above the floor, and turned her feet around and let herself down in the shaft, picked up an article on the right-hand side of the hamper and handed it to one of her visitors. She was then told there was another article on the left. She moved her feet to get to the left side and the bottom of the shaft went through and she landed on the floor of the first floor apartment and suffered injuries for which she sued the appellants. The bottom of the shaft had not been cleaned and, according to appellee's testimony, when she had looked down it at other times it appeared to be solid floor. One of the visitors warned the appellee not to get into the shaft, that there might be glass there. Appellee said that she assumed that the warning was concerned with some pieces of glass and not that there was a glass bottom to the shaft.
On these facts the majority of the Court hold that there was sufficient evidence of negligence on the part of appellants to take the case to the jury and that reasonable men could differ as to whether the appellee was guilty of contributory negligence, and, therefore, this question was also properly left to the jury. I am unable to concur in these conclusions.
In my opinion it is carrying the duty of a landlord, who rents furnished apartments, very far to say that he is responsible either for not providing a solid floor for an air shaft or for not notifying his tenants that the bottom of the air shaft was made of glass and would not bear the weight of a person. Tenants are not supposed to climb through windows and walk around in the bottom of air shafts. The window was obviously not for the *261 purpose of ingress, but was there for ventilation. The fact that it was a window and not a door should show any one that it was not intended as an entrance. Nor am I impressed with the suggestion that since clothes hampers were fastened to the outside of these windows and in the shaft, it would be inevitable that sooner or later some articles would be dropped. There are other ways of retrieving such articles than that adopted by the appellee. The janitor or the owner could have been called. The bottom of the shaft could have been opened by the pulley provided for that purpose. The bottom of an air shaft is not intended as a footway. The duty of a landlord is to keep safe all parts of the rented premises for the ordinary and proper use of the tenants. But it seems to me it is an unwarranted extension of this duty to require him to keep the bottom of an air shaft in condition for tenants to walk upon at will. And if they do, an ordinary mind would conclude that their own negligence contributed to the happening of any accident which might result.
I think the judgment should be reversed without a new trial.