Carroll v. Spencer

• Decision Date: 28 April 1954
• Docket Number: No. 125,125
• Citation: 44 A.L.R.2d 1247,104 A.2d 628,204 Md. 387
• Parties: , 44 A.L.R.2d 1247 CARROLL v. SPENCER et al. (two cases).
• Court: Maryland Court of Appeals

Page 387

204 Md. 387

104 A.2d 628, 44 A.L.R.2d 1247

CARROLL v. SPENCER et al. (two cases).

No. 125.

Court of Appeals of Maryland.

April 28, 1954.

Michael Paul Smith, W. Lee Harrison, Towson, for appellants.

Jesse Slingluff, Jr., Baltimore, Kenneth C. Proctor, Towson, for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The infant appellant, an eight year old boy, on his way home from school with three schoolmates, strayed into a partially finished house which was being built for sale by the individual appellee and the corporate appellee, and after playing about the house for a few minutes, fell through a hole in the floor and was seriously injured. In the suits for damages by the infant and his father, which followed, and which were tried together, the court directed a verdict for the defendants at the close of the plaintiffs' case. This appeal from the judgments entered for the appellees challenges the correctness of the court's ruling that the evidence was legally insufficient to support a finding of negligence. In order to simplify the discussion, we shall refer throughout to the infant appellant as the appellant.

Giving the appellant the benefit of the evidence, and the permissible inferences, most favorable to his cause, as we, of course, do, there is testimony to show these facts and circumstances: The children entered the house from the front. It was in the stage of construction where the studdings were up but no partitions had been put on. There were no doors, no front or back steps, and no glass in the window frames. There was an open hole near the rear doorway entrance about three feet wide and six feet long, and the edge of the hold close to the doorway was about forty-two inches from it and almost directly in front of it. It had been cut preparatory to the installation of stairs to the basement. Beneath the hole, the surface was unpaved and had debris, rock and brick on its surface. A ladder, sticking out of the hole, extended about two and a half feet above the floor level. The children had seen a for sale sign and had noticed adults going through the house on previous occasions. As they went through the front entrance-way, the appellant saw the foreman employed by the appellees in the front yard, and called out to him. The children say he looked at them but made no answer. They went through the house to the rear doorway, and two of them went outside to a dirt pile. A mud battle ensued between the two inside and the two in the back yard. One of the boys was throwing mud balls out the window near the rear doorway, and the appellant was throwing mud balls through the doorway, and then stepping to one side to avoid being struck by returning mud balls thrown by the two outside. As the appellant was 'standing by the door' and his companion was 'standing by the window', the foreman walked by a picture window in the front of the house and stopped and looked in, according to the testimony of the boys. They say he looked right at them, and then walked on. Five or ten minutes later, in the course of the mud battle, the appellant stepped back several steps from the doorway and fell into the hole. He and his companions say that there were shadows inside of the house--the accident occurred about four o'clock on a February afternoon--with patches of sunlight coming through the doorway and open windows, and that they did not see the hole because it was obscured by shadows. The appellant's companion admitted, however, that when he first came into the house he walked past the hole and that although he could not see it too well, he could see the edges around it and that he saw the ladder sticking up out of the hole.

The appellant says that because the appellees intended to sell the house when finished, and had posted the for sale sign, they were extending an invitation to the public to enter to inspect the property. These facts, he says, made not only prospective buyers, but also the children, invitees, to whom the appellees owed the duty of ordinary care. He says further that even if he is considered a trespasser or bare licensee, the appellees were negligent because he was in a position of imminent peril between the door and the shadow covered hole, when the foreman looked in the window at him, and that there then arose a duty on the foreman to drive him off the property or to warn him of the danger of the open hole. In effect, too, it is suggested that the hole, obscured as it was by shadows, was a hidden peril--a trap.

The appellees agree that the owner of land has a duty not to use his property as a trap, or covertly alter it so as to create hidden peril, to ensnare the unwary. They go on to say that the evidence shows that they did not so do, and shows, as a matter of law, that the appellant was a trespasser to whom they, as the owners of the property, owed no further duty, even though his presence was known, other than to abstain from wilful or wanton misconduct.

We think that under the law which has been established by this Court, stricter than that of many jurisdictions, the appellees' views on both points are sound, and control the decision here.

On the first point, it has been held that an improperly lighted vat of boiling water, flush with the floor, used in the owner's business, was not a trap. Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973, 20 L.R.A. 714. In State, to Use of Alston, v. Baltimore Fidelity Warehouse Co., 176 Md. 341, 4 A.2d 739, 741, an eleven year old boy fell from a crude raft moored two or three feet from the defendant's pier and drowned. The Court refused recovery, saying that there was nothing to indicate: '* * * the raft was a trap or its danger covert.' An open trap door, about the size of the hole in this case, behind the counter in a store, was held not to be a trap or hidden alteration condemned by the law in Pellicot v. Keene, 181 Md. 135, 28 A.2d 826. A pile of lumber, stacked so carelessly that it fell upon a passer-by, was held not to constitute a trap in City of Baltimore v. DePalma, 137 Md. 179, 112 A. 277, although beside the pile, there was a regularly used right-of-way--and this was known to the owner.

On the second point, admittedly the appellant and his friends went in the premises to play. Whatever the effect of the for sale sign as an invitation to prospective purchasers, clearly it was not an invitation, express or implied, for children to come to play on the property. We find that the appellant was not on the premises in connection with any interest or business of the appellees, immediate or remote, and so was a trespasser. Cf. Kalus v. Bass, 122 Md. 467, 89 A. 731, where the injured child accompanied his father, an express invitee, to unsafe premises, and was permitted to recover on the ground that he was at least an implied invitee. The status of the children would not change to that of invitees because the appellees, through their foreman, knew that intruders were on the property and in a position of potential danger by virtue of the unfinished condition of the house, and did not drive them off. Acquiesence is not invitation, and at most, changes the status of the trespasser to that of bare licensee, to whom the owner owes no greater duty than to a...