Benson v. Baltimore Traction Co.

• Decision Date: 21 June 1893
• Citation: 26 A. 973,77 Md. 535
• Parties: BENSON v. BALTIMORE TRACTION CO.
• Court: Maryland Court of Appeals

26 A. 973

77 Md. 535

BENSON v. BALTIMORE TRACTION CO.

Court of Appeals of Maryland

June 21, 1893

Appeal from Baltimore court of common pleas.

Action by Harry Benson, by his next friend, against the Baltimore Traction Company, for personal injuries caused by defendant's negligence. From a judgment for defendant entered on a demurrer to the declaration, plaintiff appeals. Affirmed.

Argued before ALVEY, C.J., and ROBINSON, BRYAN, McSHERRY, and ROBERTS, JJ.

C. H Warner, J. V. L. Findley, and Thomas Mackenzie, for appellant.

R. D Morrison, H. Munnikhuysen, and N. P. Bond, for appellee.

ROBERTS J.

On the 3d of February, 1892, John W. Saville, principal of the Baltimore manual training school, addressed a note to J Edward Hambleton, the president of the Baltimore Traction Company, in the following words: "Baltimore Manual Training School, 311 to 327 Courtland Street, John W. Saville, Principal. February 3d, 1892. President Hambleton--Sir: Will you kindly grant permission to the graduating class of this school to visit the two power houses of the Baltimore Traction Co.? Respectfully, John W. Saville." Upon which there was indorsed the following: "Admit the class as requested. J. Edward Hambleton, President." The appellant, who was then a student in the manual training school of Baltimore, and a member of the graduating class therein, together with 30 or more scholars and teachers of said school, on the 12th of February, 1892, visited the power house of the appellee, located on Druid Hill avenue, in Baltimore city, and were admitted, and while passing through the building the accident happened which occasioned this suit. On the 28th of October, 1892, the appellant brought suit in the court below, and on the 16th of February, 1893, filed his declaration, embodying therein the facts relied upon, and claiming damages for the injury which his son had sustained by the alleged negligence of the appellee. The appellee, upon the filing of the declaration, demurred thereto, and on issue joined thereon the court sustained the demurrer, and entered judgment for the appellee. This appeal is taken from the ruling and judgment of the court below on the demurrer. The declaration contains two counts, the first of which contains the following averments: (1) "That the plaintiff, on or about the 12th day of February, 1892, whilst a student in the manual training school of Baltimore, and a member of the graduating class therein, was, with thirty-odd other scholars and the teachers thereof, granted special written permission by the defendant company to visit a certain power house situated on Druid Hill avenue, in said Baltimore city, and the property of the defendant, for the purpose of viewing and examining the works and machinery therein contained; that on the day in question, in pursuance of the said authority so to do, he, in conpany with his said fellow students and some of the teachers of said school, was, after the presentation of said written permission to defendant's agent or employe in charge of said premises, admitted to the said power house for the purpose aforesaid, and was thereupon taken in charge by one of defendant's agents or employes, who proceeded to show the plaintiff and his companions through the ground floor of said premises, and who afterwards conducted them to the cellar or basement of said building, for the purpose of showing them the workings of the cable and other machinery therein contained, and for a while remained with the said party, warning them as they proceeded and approached certain machinery to guard against particular portions thereof, which he pointed out to them as dangerous; that afterwards, and whilst in the midst of said examination, the said employe abandoned the said party, and left them, instructing them, as he did so, to look around for themselves, without, however, warning them of any further danger; that afterwards, whilst thus looking around for themselves upon said premises, in the exercise of due care and caution, and without fault on his part thereunto contributing, plaintiff suddenly, without warning or means of preventing it, fell into a vat or a sink some two and a half feet deep, full, or nearly so, of boiling water, which vat or sink was flush or even with the floor, uncovered or open, and situated in a part of the building insufficiently lighted, but through which portion of the premises the course of the examination permitted by defendant led plaintiff and his companions, of which vat or sink he had no previous knowledge, and which, owing to the insufficient lighting of the said cellar or basement, plaintiff was unable to see in time to prevent falling therein, of which dangerous pitfall neither the company nor its agents had warned him to guard against, although its existence and dangerous character and plaintiff's ignorance thereof were known to the defendant, contrary to the duty of the defendant in the premises, in consequence of which neglect on the part of the said defendant and by reason of no other matter or thing whatsoever, and especially by reason of no negligence or want of due care on his, the said plaintiff's part thereto contributing, he was so badly scalded about the lower part of his body that he has been for a long time confined to his bed, and by reason thereof has become and is sore, sick, and disabled, and has been furthermore permanently injured and rendered unfit to earn his livelihood by labor as heretofore." (2) "And for that the defendant, at the time of the happening of the grievances hereinafter complained of, was possessed of certain premises known as a 'power house,' located on Druid Hill avenue, in the city of Baltimore, in the basement or cellar of which premises was a certain well hole, vat, or sink, between two and three feet deep, filled with boiling water, not covered by a lid nor protected by railings or guards, but left by the defendant in an open, unsafe, and dangerous condition, unsuitable for the protection from injury of those persons who might be lawfully in said cellar, and ignorant of its existence, contrary to the duty of the defendant in the premises. Yet so it was that the plaintiff, a member of the graduating class of the manual training school of Baltimore, whilst passing through the said basement or cellar, along with certain other parties, for the purpose of inspecting the machinery therein contained, having been admitted thereto by express permission of the defendant, and in pursuance of the instructions and order of one of defendant's officers to the engineer or employe in charge of said power house, being ignorant of the existence of said well hole or sink, and not having been warned by the defendant to guard against it, although the said well hole or sink was in a portion of the said cellar through which the course of plaintiff's examination, as aforesaid, led him, and which cellar was sufficiently lighted for an examination of said machinery, but insufficiently lighted to disclose the presence of said hole or sink, in consequence of which insufficient lighting plaintiff was prevented from seeing the said hole or sink in time to save himself from falling therein, of which sink he had not been warned by the defendant or its agents, although its existence and dangerous character and plaintiff's ignorance thereof were known by the defendant to make plaintiff's passage through said cellar exceedingly dangerous. And the plaintiff further says that whilst in the course of his examination of the machinery in said cellar, and whilst in the exercise of due care and caution, he fell into the said well or sink, and was seriously scalded, burned, and injured, without fault on his, the plaintiff's, part thereunto contributing, but by reason of the neglect of the defendant in neither warning him of the existence of said well hole or sink, nor in guarding or covering said hole so as to make plaintiff's passage through said premises reasonably safe, whereby, to wit, by reason of defendant's negligence, and by reason of no other matter or thing whatever, and especially by reason of no want of due care on the part of the plaintiff, he, the plaintiff, has been permanently disabled, and rendered unfit to earn his livelihood by labor as heretofore, and has been for a long time confined to his bed, and has suffered great pain of body and anxiety of mind," etc.

The demurrer concedes the facts presented by the appellant's pleading, and the question for our consideration is, do the facts stated entitle the appellant to maintain his action for the recovery of damages for the alleged wrongs which he claims to have sustained? The authorities appear to have classified this subject under these heads, to wit: (1) Bare licensees or volunteers; (2) those who are expressly invited or induced by the active conduct of the defendant to go upon the premises; (3) customers and others, who go there on business with the occupier. Each case must largely depend upon the circumstances attending the occurrence, and it is not infrequently found to be difficult to determine whether the injured party is a mere licensee, or whether he is on the premises by the implied invitation or enticement of the owner or occupier. Those who enter on business usually experience...