168 A. 846 (Md. 1933), 6, Gordon Sleeprite Corporation v. Waters

Docket Nº:6.
Citation:168 A. 846, 165 Md. 354
Party Name:GORDON SLEEPRITE CORPORATION v. WATERS.
Attorney:Joseph Wase, of Baltimore, for appellant. Robert France, of Baltimore (William Curran, Paul Higinbotham, Walter V. Harrison, and Harrison & France, all of Baltimore, on the brief), for appellee.
Judge Panel:Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.
Case Date:November 09, 1933
Court:Court of Appeals of Maryland
 
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Page 846

168 A. 846 (Md. 1933)

165 Md. 354

GORDON SLEEPRITE CORPORATION

v.

WATERS.

No. 6.

Court of Appeals of Maryland

November 9, 1933

Appeal from Superior Court of Baltimore City; Samuel K. Dennis, Judge.

Action by William Harrison Waters, to his own use and to the use of the Commercial Casualty Company, against the Gordon Sleeprite Corporation. Judgment for plaintiff, and defendant appeals.

Reversed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Joseph Wase, of Baltimore, for appellant.

Robert France, of Baltimore (William Curran, Paul Higinbotham, Walter V. Harrison, and Harrison & France, all of Baltimore, on the brief), for appellee.

SLOAN, Judge.

The plaintiff, William Harrison Waters, was employed by James J. Moran, for whom he went on April 18, 1932, to the office of the defendant, the Gordon Sleeprite Corporation, on East Fayette street to collect a bill. While engaged on this errand he fell down the defendant's elevator shaft and was injured. He collected compensation from his employer's insurer and he and the insurer sued the defendant for damages for the injuries sustained (Code, art. 101, § 58), and it is from a judgment in their favor this appeal is taken.

The plaintiff, Waters, testified that he went to the office of the defendant, which was located on the north side of West Fayette street, adjoining the mattress factory of the defendant on the west. The factory building is Nos. 1240 and 1242 Fayette street and the office No. 1244, each having an entrance from the street. The office and factory form an L, in which there is a yard extending from the rear of the office along the west side of the factory fifty feet to an alley. The only access to the factory from the office is from the street and across the yard. The ground floor of the factory is lighted by two windows on each side of the door facing the yard and an elevator shaft is located opposite and about seven feet from the door. Waters said no one was in the office while he was there. He waited about five minutes, then went out of the office, across the yard and into the factory and, as stated in the record, he "intended to go up to the elevator gate and holler up the shaft to attract attention, but before he got there he fell down the shaft because the gate nearest to him was up, leaving the shaft unprotected, there being no chain or bar across the pit; that the gate he saw down was on the far side; that it was dark at the elevator shaft and in the building but that he did see the hole." It appears that there were gates on opposite sides of the elevator, and that the near gate was up and the far one down; that Waters mistook the far gate for the entrance to the elevator, and in going toward it, passed under the near gate, which was up,

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and fell into the cellar. He had never been inside the building before the day of the accident. He had on one occasion delivered a machine at the rear door of the factory building and did not see an elevator then.

The question here is whether the defendant owed Waters any duty for the violation of which it is answerable in damages, or were his injuries the result of his own voluntary act?

The rule by which liability is to be determined, as expressed by Judge Alvey in Maenner v. Carroll, 46 Md. 193, 213, is: "A party has the right to use his land as he pleases, except as he may be restrained by duty to the public or to private individuals. But any individual who complains of the manner in which a defendant may have used his own land, should show with certainty and precision both the right of the plaintiff and the duty of the defendant, and in what manner such right and duty have been violated." In the case of an invitee it was said in Riganis v. Mottu, 156 Md. 340, 343, 144 A. 355, 356, that the defendant "was bound either to exercise ordinary care to see that [the] premises were reasonably safe for him, or, if they were not, to warn [him] the appellant of any latent or concealed danger," though "it is oftentimes difficult to determine whether the circumstances make a case of invitation or only of mere license. 'The principle,' says Mr. Campbell in his treatise on Negligence, 'appears to be that invitation is inferred where there is a common interest or mutual advantage, whilst a license is inferred where the object is the mere pleasure or benefit of the person using it.' " Benson v. Baltimore Traction Co., 77 Md. 535, 541, 26 A. 973, 975, 20 L. R. A. 714, 39 Am. St. Rep. 436.

In these cases of latent, or concealed danger on one's premises, it is always a question of fact as to...

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