Eyerly v. Baker

• Decision Date: 03 May 1935
• Docket Number: 7.
• Citation: 178 A. 691,168 Md. 599
• Parties: EYERLY v. BAKER.
• Court: Maryland Court of Appeals

178 A. 691

168 Md. 599

EYERLY v. BAKER.

No. 7.

Court of Appeals of Maryland

May 3, 1935

Appeal from Circuit Court, Allegany County; Albert A. Doub, Judge.

Action by Margaret Baker against Charles H. Eyerly, trading as Eyerly's Department Store. From a judgment for plaintiff defendant appeals.

Reversed and remanded for a new trial.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Robert H. McCauley, of Hagerstown, and Walter C. Capper, of Cumberland (Harold Tschudi and Semmes, Bowen & Semmes, all of Baltimore, on the brief), for appellant.

Grace R. Gerber Silverberg, of Baltimore, and Edward J. Ryan, of Cumberland, for appellee.

OFFUTT Judge.

Margaret M. Baker, the appellee, in attempting to leave Eyerly's Department Store in Hagerstown, Md., as she was entering a revolving door, was struck by one of the fins or wings of the door which had been put in motion by a person entering the store, and injured. She demanded of the appellant compensation for her injuries on the ground that they had been occasioned by his negligence, and the demand having been refused, she brought this action to recover for them. The trial resulted in a verdict and judgment in her favor, and from that judgment the defendant appealed.

The record presents four exceptions; the first three relate to the court's rulings on evidence, the fourth to its rulings on the prayers.

The declaration contains two counts, the first postulates the defendant's liability upon the hypothesis that the door itself was defective and unsafe, and the second upon the hypothesis that the injuries were caused by the negligent operation of the door by defendant's servant acting within the scope of her employment.

The important questions submitted by the appeal are whether there was in the case evidence legally sufficient to permit a recovery upon either ground. In dealing with those questions, the truth of all evidence tending to support either theory, together with such inferences as may naturally and legitimately be deduced from that evidence, will be assumed. Cases noted IV Tiffany's Digest, Suppl. 355.

The department store where the accident occurred is located on West Washington street in Hagerstown, and is owned and operated by Charles H. Eyerly, trading as Eyerly's Department Store. The West Washington street entrance to the store is furnished with a revolving door. That door consisted of four fins or leaves radiating at right angles to each other from the axis of a cylindrical well or compartment 91 inches high and 84 inches in diameter. The sides of the cylinder are interrupted to afford space to enter and leave the door. On the outer edge of each leaf or fin is a strip of rubber so adjusted as to be in contact with the sides of the cylinder, and on the top and bottom edge there is a strip of heavy felt. Those strips of rubber and felt serve a dual purpose, to keep out the dust and the weather, and to retard the revolution of the door on its axis. The fins are so constructed that they may be folded and pushed to either side, leaving unobstructed a central aisle 58 inches wide.

Mrs. Baker had entered the store to make a purchase, and in leaving it she "stepped in the door" and raised her hand to grasp a rod placed on one of the leaves to facilitate the use of the door, when some person coming in, apparently from the street, "brought the door around and struck" her arm and whirled her back in the store. The in-coming person was identified by Mrs. Baker as Miss Louise Jane Musey, who was employed on another floor of the store as a saleswoman.

Mrs. Baker, in the course of her testimony, said that the rubber along the vertical edges of the leaves was worn, that it was "pretty bad," that she had noticed that on several occasions, that the door revolved "very fast," that it went around "very easy--didn't require the push," and when asked whether the door made a complete turn, said, "Yes, it went clear around as fast as it could go." She further testified:

"Q. Did you keep on around or did you go back in the store? A. Well the door still kept going around and she said, I am sorry, I am sorry, I didn't see you.

Q. Did the door stop? A. No, the door didn't stop.

Q. And you were then outside the door? A. Yes sir, I was standing in the store. It whirled me back in the store.

Q. (Mr. McCauley): And you say the door, even after you were whirled back in the store, the door kept on? A. The door still kept on going after she came in the store, like a door does; it kept going around until it slacked up. She was on the inside and swung it around and whirled me back in the store and she just walked around and said, I am sorry, I am sorry, I didn't see you."

In describing the entrance of the person she identified as Miss Musey, she said, "this girl runs in and turns it around and threw me around and turns me clear back in the store and my arm was numb," that "she comes dashing in."

Mrs. Edna Baker, a daughter-in-law of the plaintiff, testified that on the afternoon of the day of the accident she was in the store and used the same door, that it "swung very easy," and that the rubber on the door was "very much worn and also the felt."

William Rohrer, a son-in-law of the plaintiff, testified that he had examined the door on the Monday or Tuesday after the accident and that when he "went in I noticed the door worked very easy and when I come out I looked the door over as to something to cause it to run easy and I found the strips were worn on the door, the weather strips that answer as wind breakers and they brake on the door." A motion was made to strike "that" out, and the court replied "all right." Just what "that" was or what was stricken out is not clear, nor is the doubt aided by the fact that later on counsel for defendant moved to strike out testimony by the witnesses Edna Baker and Rohrer that they "saw worn rubber on the edge of these fins." That motion was overruled, so that that testimony of Rohrer at least was in the case, and it is not possible to say what part of the answer was stricken out.

Henry W. Helfrich, a builder and contractor, said: "These doors are built inside of a glass case or part glass case in some instances or a circle with four partitions or compartments. In most every instance the doors have on the edge a rubber--sort of rubber wiper you might call it, which comes in contact with the glass enclosure so that when the doors revolve this rubber wiper wipes on the glass or enclosure and helps both to act as a brake to reduce the speed of revolving and also to keep out dust and the weather--cold air. That is practically about the only thing I would say it is on there for. When that rubber is worn the same thing would happen to that as to anything which would operate as a brake. If it were worn excessively it would not retard the door as quickly. In other words the door would revolve more quickly without this braking surface than with it and at the same time it would leave in cold air and dust." On cross-examination he added: "When the door is put in operation with new rubber on the outside edge of the fins and then that rubber wears down it is good practice to adjust that rubber by moving it out to make it tight. After it is adjusted and moved out and put in good position the outside edge would still show the appearance of the original wear; the outside edge would show the wear. It would still be sufficient to brake the door provided it was new, soft rubber--provided the rubber had not been hardened or lost its resiliency to prevent it from being fairly air tight. These bands or strips are made to be adjusted so that they can be adjusted from time to time as the rubber wears down."

On behalf of the defendant there was evidence tending to prove that at the time of the accident the revolving door was folded back against the sides of the entrance and not in use at all, that Miss Musey did not meet Mrs. Baker at the folding door at time of the accident, that she did not own garments similar to those which Mrs. Baker said were worn by the person who put the door in motion when she was injured, and it was undisputed that Miss Musey was employed on another floor of the building as a saleswoman, and that her duties had no connection with the use, operation, or maintenance of the door. Evidence was also offered to prove that the door was in good condition, and that it required a pull of from fifteen to twenty pounds to overcome the resistance of the felt and rubber strips on the leaves as they were adjusted at the time of the accident, and "It is not possible to revolve that door back in the opposite direction because the rubber is pressed back in sort of a rope, bunches up and obstructs the door, which makes it impossible to move it backwards."

There was also this testimony:

Mrs Baker testified: "I went in Eyerly's between half past eleven and twelve o'clock but did not make a purchase on that day at Eyerly's; they did not have what I wanted. I had gone in the basement of the store. I wanted a pound box of Virginia Dare mixed chocolates. The clerk said he had a couple of boxes that were a couple months old and I asked him if they were fresh and he said no, and he told me he was expecting a shipment in a couple of days, and I said I would come in later then. * * * I then came up the steps and went to the door leading to West Washington Street. * * * I stepped in the door. The door was still and I stepped in the door and raised my hand to grasp the rod to go out on the street and the instant I touched it, this clerk came in and brought the door around and struck my arm and whirled me back in the store and my arm was numb and I stood there stunned awhile and she came in around me and said, I am...