Brinkmeyer v. United Iron & Metal Co., Inc.

• Citation: 177 A. 171,168 Md. 149
• Decision Date: 25 January 1935
• Docket Number: 65.
• Parties: BRINKMEYER v. UNITED IRON & METAL CO., INC.
• Court: Court of Appeals of Maryland

177 A. 171

168 Md. 149

BRINKMEYER v. UNITED IRON & METAL CO., INC.

No. 65.

Court of Appeals of Maryland

January 25, 1935

Appeal from Superior Court of Baltimore City; Albert S. J. Owens Judge.

Action by Francis Brinkmeyer against the United Iron & Metal Company, Inc. Judgment for defendant, and plaintiff appeals.

Affirmed.

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

George W. Lindsay, of Baltimore (Sauerwein & Lindsay, of Baltimore on the brief), for appellant.

Hilary W. Gans, of Baltimore (Samuel S. Smalkin and Joseph T Brennan, both of Baltimore, on the brief), for appellee.

URNER Judge.

The first count of the amended declaration in this case alleges that on May 28, 1933, the plaintiff's eleven year old son was attending a baseball game, "which was being played on, or immediately adjacent to, premises owned by the defendant"; that "the public was invited to the game, and plaintiff's son was lawfully on the premises, and a voluntary subscription was collected from the attending public for the benefit of the contending clubs"; that "the defendant had piled in close proximity to the baseball field a number of iron pipes, boilers, stacks, tubes and other large iron objects"; that "there was no fence between the baseball field and the pile of iron objects, and for a long period of time the public attending such ball games had been accustomed and permitted to stand and sit on such iron objects in order to obtain a view of the games, and such practice was known to and permitted by the defendant, its agents, servants, and employees, and there were no signs warning of danger or prohibiting such practices"; that on the day mentioned, "while the plaintiff's son was sitting on a stack or tank observing the baseball game, some one or more of the large pipes, stacks or boilers or other large iron objects, shifted their position in the said pile and rolled down upon and against the plaintiff's son, severely and permanently injuring him"; and that his injuries "were caused entirely by the negligence of the defendant, its agents, servants and employees, in piling said iron objects or in permitting the same to be piled in such a careless and negligent manner or to remain in such condition as to become dangerous to the public," and without any fault or negligence on the part of the plaintiff or his son thereunto contributing.

In the two other counts there are additional allegations as follows: "That on or about the 25th day of May, 1933, the defendant, its agents, servants, and employees, placed on the aforesaid pile one or more pipes, stacks, boilers, or other large objects, in an insecure position, thereby creating a new and undisclosed source of danger to any persons who should continue to be upon said pile as they had theretofore been permitted as aforesaid, that notwithstanding the dangerous condition of the said premises no sign was erected or warning given to the public and the general appearance of the pile was substantially the same as it had been theretofore, and the dangerous condition was not apparent to spectators attending the ball game the following Sunday; that on Sunday, May 28th, as aforesaid, a number of spectators at the baseball game there being played, proceeded to sit and stand upon the iron objects in said pile as they had theretofore been accustomed and permitted; that while plaintiff's said son was sitting on a stack or tank observing the baseball game, some one or more of the pipes, stacks, boilers, or other large objects, which had been placed on said pile, on or about the 28th day of May, 1933, shifted their position on the said pile and rolled down upon and against the plaintiff's said son, severely and permanently injuring him"; and "that the injuries to the plaintiff's son were caused entirely by the negligence of the defendant, its agents, servants and employees, in piling said iron objects * * * and in creating a new and undisclosed source of danger without warning the public of the change. * * *"

To the amended declaration as a whole, and to each of its counts the defendant demurred. The action of the trial court in sustaining the demurrer was in accord with the principle of law recently stated and applied in the case of State, to Use of Lorenz, v. Machen, 164 Md. 579, 165 A. 695. In that case, as in this, the injuries sued for were received by a boy who was permissively using the property alleged to be dangerous. The opinion, by Chief Judge Bond, said (pages 582, 583 of 164 Md., 165 A. 695, 696): "In several cases this court has had to consider claims of persons on property of others by license or permission, as distinguished from invitation or inducement. Maenner v. Carroll, 46 Md. 193; Balto. & O. R. R. Co. v. State, Use of Allison, 62 Md. 479, 50 Am. Rep. 233; Benson v. Baltimore Traction Co., supra [77 Md. 535, 26 A. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436]; Kann v. Meyer, 88 Md. 541, 41 A. 1065; Baltimore v. De Palma, 137 Md. 179, 112 A. 277. And the decisions in those cases have declared the familiar principle that permission or license gives leave only to take the property as the visitors find it, and that the owner or occupant undertakes no duty to those visitors who come for their own pleasure or convenience, and not at his invitation or upon inducement, express or implied, from a common advantage, except that, being aware of their presence, he must not injure them willfully or entrap them. 'A...