Hochschild, Kohn & Co., Inc. v. Murdoch

• Decision Date: 03 April 1928
• Docket Number: 14.
• Citation: 141 A. 905,154 Md. 575
• Parties: HOCHSCHILD, KOHN & CO., INC., v. MURDOCH.
• Court: Maryland Court of Appeals

141 A. 905

154 Md. 575

HOCHSCHILD, KOHN & CO., INC., v. MURDOCH.

No. 14.

Court of Appeals of Maryland

April 3, 1928

Rehearing Denied May 25, 1928.

Appeal from Baltimore City Court; Eli Frank, Judge.

"To be officially reported."

Action by Mary Murdoch against Hochschild, Kohn & Company, Inc., a body corporate, duly incorporated under the laws of the state of Maryland. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Fendall Marbury, of Baltimore (William L. Marbury, of Baltimore, on the brief), for appellant.

Edward H. Burke, of Baltimore (Bowie & Burke, of Baltimore, on the brief), for appellee.

BOND C.J.

The owner and occupier of a department store in Baltimore City appeals in this case from a judgment for damages for injuries to a customer knocked down by one of the wings of a revolving door. The only exceptions pressed are to the trial court's refusal of instructions to the jury that their verdict should be for the defendant, because of a lack of any legally sufficient evidence of negligence causing the injury because of a variance between the allegations of negligent cause and the facts adduced as proof of it, and because of contributory negligence on the plaintiff's part.

The plaintiff, a lady of eighty-nine years of age, was leaving the store with a sister two or three years younger, and whose eyesight was impaired, and, according to the plaintiff's testimony, she found the left side of one of the revolving doors open, that is, there was an open passage through on that side; and seeing this she started to go out with her sister through that passage when a wing of the doors ahead of her swung around and injured her. Employees of the store testified that she merely made the mistake of starting through the wrong side of the doors as they were revolving regularly, but the plaintiff's version is legally sufficient for consideration by the jury on so much of the facts, and on appeal it must be taken as proved that there was a passageway left open by the folding back of at least one wing of the doors.

The important question to be decided is whether there was in all the evidence presented sufficient to support a finding that the accident thus occurring was brought about by negligence for which the owner and occupier of the store was liable. In Maryland, as elsewhere, it is settled that the occupier of a store or other premises is not an insurer of the safety of persons who come there upon his invitation to do business with him, that his obligation is one for the exercise of care for their safety such as an ordinarily prudent man would exercise, and any liability on his part for injury to a patron could be based only upon a failure to exercise that care. B. & O. R. R. Co. v. Rose, 65 Md. 485, 4 A. 899; Fulton Building Co. v. Stichel, 135 Md. 542, 545, 109 A. 434; Texas Co. v. W. B. & A Elec. Ry. Co., 147 Md. 167, 173, 127 A. 752, 40 A. L. R. 495. Cases collected 29 A. L. R. 13, 20.

This court has also adopted the view widely held in other jurisdictions, that the obligation to business customers or invitees with relation to construction or repair of the premises, is one to see that care is exercised, by whomsoever the work of construction or repair may be done, whether by the occupier's servants or by independent contractors. Bethlehem Steel Co. v. Variety Co., 139 Md. 313, 321, 115 A. 59, 31 A. L. R. 1021; Agricultural & Mech. Ass'n v. Gray, 118 Md. 600, 606, 85 A. 291; cases collected 23 A. L. R. 1009; Pollock, Torts, 11 Ed. 512, 516.

The evidence is that this revolving door was an old one with modern appliances added, that it was bought from the manufacturer who made most or all of similar doors at the time; and there is no testimony that it lacks any appliances needed, or that it differs materially from such doors as are in widespread use by owners or occupiers of other buildings while there is testimony for the defendant that it is just such a door. The fact that a wing "collapsed," as the witnesses say, that is, that it left its regular...