Isaac Benesch & Sons, Inc. v. Ferkler

• Decision Date: 07 December 1927
• Docket Number: 25.
• Parties: ISAAC BENESCH & SONS, INC., v. FERKLER.
• Court: Maryland Court of Appeals

139 A. 557

153 Md. 680

ISAAC BENESCH & SONS, INC., v. FERKLER.

No. 25.

Court of Appeals of Maryland

December 7, 1927

Appeal from Baltimore Court of Common Pleas; Eugene O'Dunne Judge.

"To be officially reported."

Action by Ida May Ferkler against Isaac Benesch & Sons Incorporated. Judgment for plaintiff, and defendant appeals. Affirmed.

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

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

T. Lyde Mason, Jr., of Baltimore, for appellee.

SLOAN J.

Isaac Benesch & Sons, Inc., the appellant, conducts a department and general merchandise store on Gay street in Baltimore, of which the appellee, Ida May Ferkler had been a customer for 30 years. On November 30, 1925, the appellee had been at the store, which was very well known to her. She had made her purchases and was on her way out. Just as she was turning from a cross aisle into the right aisle leading to the exit, she slipped and fell, sustaining painful injuries, serious enough to keep her in bed for five weeks and to cause her, according to the testimony of herself and members of her family, pain and nervousness to and until the trial, sixteen months after the accident. The appellee testified that immediately after the fall and before she was lifted and taken to a rest room in the store she saw that the floor was "dark and mucky and smeary, like an oiled floor would be where the oil was not dried," and that "the oily condition of the floor" caused her to fall. In answer to a question of the court, "Well, it might have been stained that color?" the appellee said, "No; it was oiled; my gloves and everything was full of it." From a verdict and judgment for the plaintiff (appellee), the defendant appeals.

There are three exceptions, two to the evidence and one to the granting of the plaintiff's three prayers, the overruling of special exceptions to each of them, and to the refusal of the defendant's A, first, second, third, fourth, eighth, ninth, and tenth prayers.

The first exception was to a question to Dr. Hemmeter, the attending physician, as to the probable effect of the injuries testified to on the nervous condition of the appellee and on her ability to perform her household duties, the answers to which were that they would leave her in a nervous condition and lessen her ability to perform her household duties. These were opinions, apparently, from the evidence, based on the personal observation of the attending physician, the value of his opinion to be tested on cross-examination (Jones v. Collins, 94 Md. 403, 51 A. 398; Mitchell v. Slye, 143 Md. 418, 427, 122 A. 555); and the appellant's objections to the questions asked Dr. Hemmeter were properly overruled.

The appellant's A prayer is a variance prayer, wherein it is stated that the proof does not measure up to the allegation of the declaration that the plaintiff "was caused to slip and fall due to the floor having been freshly oiled and the failure of the said defendant to allow sufficient time to elapse for the proper drying of the oil that had been placed thereon." The testimony of the appellee herein quoted substantially agrees with the allegation; in fact, she proved a stronger state of facts than she alleged. The appellant's first and second prayers asked for a directed verdict because of lack of evidence of negligence, and likewise the third because of the "undisputed evidence" of plaintiff's contributory negligence.

This court, in Kann v. Meyer, 88 Md. 541, 549, 41 A. 1065, 1066, quoted with approval from Cooley on Torts, 718:

"If one expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit."

See note to 33 A. L. R. 181.

"Whether a woman who, while in a shop where she had no reason to apprehend danger, keeps her eyes fixed upon articles which are put on exhibition to attract purchasers rather than upon the floor in search of pitfalls, uses the ordinary caution and vigilance which persons of reasonable prudence would be expected to use under like circumstances, is a question of fact for the jury, and not of law for the court." Hendricken v. Meadows, 154 Mass. 601, 28 N.E.

1054; Page 559 Langley v. Woolworth, 47 R.I. 165, 131 A. 194; Brown v. Stevens, 136 Mich. 311, 99 N.W. 12; Burton v. Abbett Co., 120 Or. 536, 252 P. 973.

"The question of ordinary care on the part of the party injured is not to be determined in an

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