Milestone System, Inc. v. Gasior

• Citation: 152 A. 810,160 Md. 131
• Decision Date: 13 January 1931
• Docket Number: 61.
• Parties: MILESTONE SYSTEM, INC., v. GASIOR.
• Court: Maryland Court of Appeals

152 A. 810

160 Md. 131

MILESTONE SYSTEM, INC., v. GASIOR.

No. 61.

Court of Appeals of Maryland

January 13, 1931

Appeal from Baltimore Court of Common Pleas; Albert S. J. Owens Judge.

Action by Katherine Gasior against the Milestone System, Inc. Judgment for plaintiff, and defendant appeals.

Affirmed.

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

Philip B. Perlman and Wirt A. Duvall, Jr., both of Baltimore, for appellant.

Maurice J. Pressman, of Baltimore (Sol. C. Berenholtz, of Baltimore on the brief), for appellee.

PARKE J.

The defendant is a corporation carrying on in Baltimore city the business of letting out for reward passenger automobiles which are delivered to the hirers, who, during the period of the letting, have exclusive possession, control, and management of the automobiles so rented. On July 21, 1929 the defendant let a Buick sedan of 1928 model to Pete Theodore, who used it to drive a party of five young women from Baltimore to Aberdeen. On the way back, the plaintiff was injured in a fall through the door of the automobile to the highway. She brought suit and recovered a judgment, against the defendant, which assigns as the ground for reversal the refusal to grant a prayer taking the case from the jury because there was no legally sufficient evidence of the defendant's negligence, or that the plaintiff had assumed the risk or been guilty of contributory negligence.

The default attributed to the defendant is its alleged negligence in letting to Theodore an automobile with its right back door in a dangerous condition. Because of the defendant's prayer to the legal sufficiency of the evidence, the substance of the testimony which the plaintiff relied upon to establish her cause of action will be stated. The automobile let was standing on the side of the street. An attendant of the defendant's examined the engine, steering wheel, and brakes, but not the doors. Theodore then took possession of the automobile at the defendant's place of business on the corner of Light and Lombard streets, and got in the driver's place, and his present wife and another young woman occupied the front seat with him, and two other women got in the back of the automobile. The attendant, who had showed him the automobile, closed the front and back doors, and Theodore drove off to get the plaintiff, the sixth member of the party. Although Theodore had no trouble with the automobile and neither heard nor was informed of the fact the testimony of the women is that after the automobile had been driven about two blocks a rattling noise was heard coming from the right rear door. When the automobile had been driven to Eastern avenue and Dallas street it was stopped for the plaintiff who opened the right rear door to get in but had difficulty in closing it until she had slammed the door several times. On their way to Aberdeen the same rattling sound was occasionally noticed by one of the women on the back seat but not by the plaintiff. When Aberdeen was reached the party opened the doors of the automobile, and got out. After an interval of two hours, Theodore sat at the driver's wheel, and the women resumed their places. The plaintiff, as before, was the last one in and had a similar experience. She tried to close the same door several times, but it would not stay shut until she had slammed it hard.

On their return in the daytime from Aberdeen, Theodore left the metaled highway for a short cut by way of an uneven dirt road. The automobile was running about fifteen miles an hour, and the plaintiff was sitting on the edge of the back seat and leaning forward while talking with the two women in the front, when the automobile struck a rough place in the road, and the plaintiff's right side of her body was thrown by the jolt against the door, and her extended arm passed through the open window of the door, which opened under the impact, so that the plaintiff, carried by loss of balance and momentum, fell out of the automobile, and by her hold through its window pulled, as she dropped, the door loose from the body of the automobile to which it was fastened by hinges, so that the door was left hanging from some remaining attachment at its top.

The automobile was stopped within fifteen or twenty feet of where the plaintiff lay hurt on the roadway, and an examination was made of the door. The witnesses for the plaintiff testified that the spring lock was found not to be in order. The bolt was fast in the lock. When the handle was turned, the bolt stuck in the lock and would not shoot out so as to engage in a keeper until the door was struck several blows on the side.

There was other testimony on the part of the plaintiff that tended to show that the driver had not heard any rattling and neither knew nor was informed of any defect in the automobile; and that, from the time the automobile was delivered until the occurrence of the accident, the automobile had not sustained any injury or been in any mishap, nor had it been tampered with by any one; and that the plaintiff had not opened the door by a turn of the handle.

While the defendant could produce no witness to testify to the circumstances of the trip and the accident, it offered testimony which, if believed, would establish that in the presence of the hirer an experienced and skilled attendant had made a thorough and customary inspection and test of the doors at the time the automobile was let to Theodore; and, again, when the machine was returned, the right rear door was examined and tested by a competent agent of the defendant, and, on both occasions, the lock was found to be in perfect condition. The other evidence on the part of the defendant waas to the effect that it would have been impossible for the door to have been pulled off, and it and the body of the automobile damaged in the manner and to the extent sustained as a result of such an accident and circumstances as were described by the witnesses for the plaintiff. The defense, therefore, was not that the accident was attributable to a latent defect, which, notwithstanding the exercise of reasonable care, was not discoverable by an...