Dickey v. Hochschild, Kohn & Co.

• Decision Date: 24 May 1929
• Docket Number: 24.
• Citation: 146 A. 282,157 Md. 448
• Parties: DICKEY v. HOCHSCHILD, KOHN & CO.
• Court: Maryland Court of Appeals

146 A. 282

157 Md. 448

DICKEY v. HOCHSCHILD, KOHN & CO.

No. 24.

Court of Appeals of Maryland

May 24, 1929

Appeal from Superior Court of Baltimore City; Duke Bond, Judge.

Action by Martha E. Dickey against Hochschild, Kohn & Co. From a judgment for defendant on directed verdict, plaintiff appeals. Reversed and remanded.

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

Harry O. Levin, of Baltimore, for appellant.

Fendall Marbury, of Baltimore (L. Wethered Barroll and William L Marbury, both of Baltimore, on the brief), for appellee.

OFFUTT J.

The appellee in this case conducts a large department store at the northwest corner of Howard and Lexington streets in Baltimore City. Between the third and fourth floors of the building it occupies, there is a mezzanine or balcony floor connected with the third floor by a flight of stairs consisting of about 12 steps. The risers of these steps are of a convenient height, and the treads are about 6 feet long by about 12 or 14 inches in width, and on the left of the stairway going down there is a "banister rail." Along the surface of the treads there are placed lengthwise and apparently parallel with the edges thereof and about 4 inches from the risers three metal straps, then a strip of rubber or linoleum about 4 inches wide, and then three other straps.

On August 23d, 1926, Mrs. Martha E. Dickey, the appellant, with her daughter, Mrs. Florence Sterling, visited the store, and went to the third balcony, or mezzanine floor, to look at some "sport dresses" which were displayed there. Having finished their inspection they started to descend the stairway to the third floor. Mrs. Dickey who was on the left side with her hand on the rail, placed her right foot on the first step down from the landing, and then her left foot on the same step, but as she attempted to proceed her left foot caught on the step, she was thrown off her balance, and fell to the bottom of the stairs. When her daughter reached her she found that her mother had lost one of her shoes, and when she returned to look for it she found it so tightly wedged between the floor of the first step down from the landing and the metal strap nearest the riser that to remove it it was necessary to pull it out. "The shoe was hooked in the tread, which and a space--it looked like the tread--in fact it wasn't all the way down on the wood, there was a space between the wood and the iron tread where the shoe got hooked into." Upon examining the strap she found that it was secured to the surface of the step by screws, but that the end in which appellant's foot caught was so loose that there was a space between it and the floor of the step in which the shoe caught, and that while there was a hole in that end for "the screw, there was no screw in it."

Some 18 months later, on March 23d, 1928, Mrs. Dickey brought an action in case against the appellee in the superior court of Baltimore City to recover for the injuries she claimed to have suffered as a result of that accident. The case came on in ordinary course for trial, and at that trial, at the close of the plaintiff's case, the court directed a verdict for the defendant on the ground that no evidence had been offered legally sufficient to entitle the plaintiff to recover. From the judgment on that verdict this appeal was taken.

The single question presented by the appeal is whether the facts stated, which are conceded by appellee's demurrer prayer are sufficient in law to justify an inference that it was guilty of actionable negligence in permitting the step which occasioned the injury of which appellant complains to be in an unsafe condition.

It is well settled that one who enters a store for the purpose of purchasing articles offered for sale there, or even for the purpose of inspecting them, is an invitee, and that the proprietor owes to such person the duty of exercising ordinary care to see that the place where such articles are displayed and the approaches thereto are in such a condition as not to imperil him so long as he himself exercises ordinary care. Hochschild, Kohn & Co. v. Murdoch, 154 Md. 575, 141 A. 907; Isaac Benesch & Sons v. Ferkler, 153 Md. 683, 139 A. 557; 58 A. L. R. 136; 33 A. L. R. 181; 45 C.J. 814, 826. And any breach of that duty resulting in injury to the invitee will constitute actionable negligence. But as actionable negligence is a relative and not an absolute term, whether it exists in a given case must depend upon the facts and circumstances from which it is sought to be inferred. Benedick v. Pott, 88 Md. 55, 40 A. 1067, 41 L. R. A. 478; Geiselman v. Schmidt, 106 Md. 584, 68 A. 202; Schell v. United Railways, etc., Co., 144 Md. 531, 125 A. 158. "Ordinary care" is also a relative term, the meaning of which varies with the nature and character of the object to which it is applied ( Merrifield v. Hoffberger Co., 147 Md. 141, 127 A. 500), and conduct which under one set of circumstances would constitute ordinary care might under others be wholly insufficient to gratify the demands of that term. Words and Phrases, First, Second, and Third Series.

So that in determining whether the facts to which we have referred are sufficient to support an inference of negligence consideration must be given not only to the particular defect in the step which occasioned the accident, but also to other facts such as the purpose for which the stairway was designed, that it was likely to be used by large numbers of persons of varying degrees of physical strength and activity, and of all ages, and that the attention of such persons might very probably at times be diverted by articles about them displayed for the very purpose of attracting their attention. Under such circumstances, ordinary care required the proprietor not only to see that the stairway was so constructed as to be reasonably safe for use by persons who were themselves exercising ordinary care, but that it was maintained in that condition. The trial court reached the conclusion that the facts of this case were not legally sufficient to permit any rational inference that the appellee had failed to discharge either of those duties, and in arriving at that conclusion much reliance was placed upon the case of Schnatterer v. Bamberger et al., 81 N. J. Law, 558, 79 A. 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139. In that case the plaintiff, while descending a stairway in defendants' store,...