Morrison v. Suburban Trust Co.

• Decision Date: 10 April 1957
• Docket Number: No. 147,147
• Citation: 130 A.2d 915,213 Md. 64
• Parties: William MORRISON v. SUBURBAN TRUST COMPANY, Executor Estate Josias M. Cobb, Deceased.
• Court: Maryland Court of Appeals

Page 64

213 Md. 64

130 A.2d 915

William MORRISON v. SUBURBAN TRUST COMPANY, Executor Estate Josias M. Cobb, Deceased.

No. 147.

Court of Appeals of Maryland.

April 10, 1957.

John F. Lillard, Jr., Hyattsville, for appellant.

Hal C. B. Clagett and Sasscer, Clagett & Powers, Upper Marlboro, on the brief, for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

HAMMOND, Judge.

Appellant was injured in the commercial garage of the decedent, represented here by his executor, the appellee, when he tripped over the handle of an automobile jack protruding from the front of a car. At the conclusion of the evidence for the injured man, the trial court, assuming primary negligence for the purpose of the decision, found the plaintiff to have been contributorily negligent as a matter of law. The appeal is from the judgment for the defendant below, for costs.

We find no need to rule on the question of contributory negligence since we think there is no evidence of primary negligence. Appellant Morrison was the treasurer of the town of Bladensburg and appellee's decedent, Cobb, was one of the town councilmen. Morrison 'dropped in' Cobb's garage one afternoon to talk to him about town affairs. The garage has big double doors. As one goes in there is an office at the laft front corner, with a door on the street side and a door opening into the garage. Cobb was working at a bench about half way down the length of the garage on the right side. Morrison walked back to him and the two talked for several minutes. Then they started to walk together to the office. The testimony does not show who initiated the move. As they crossed the garage towards the office on the other side, Morrison tripped over the handle of a four wheel jack protruding about four inches above the floor, the body of which was under the front of a car about 15 feet inside the double doors and in the middle of the garage. Morrison said: 'Mr. Cobb was a big man and I am short, and, as we were walking, I was talking and looking up at him.' He testified further: 'I was looking up and I didn't see the jack handle and I tripped over it.' The double doors were open on a bright sunny day in March and the time was about two-thirty in the afternoon. On cross-examination Morrison admitted that there was nothing to prevent him from seeing the jack handle 'if I had looked at it' and that had he looked, he probably would not have fallen over the jack. He himself had owned an interest in, and worked about, a filling station and garage and said he was familiar with their operations and with the type of jack involved, as well as with every other type. He was entirely familiar with Cobb's garage since he had visited there a number of times.

It is conceded that Morrison was an invitee to whom was owed the duty of ordinary care. In our opinion ordinary care in the conduct of a garage does not require that the floor area used in the day by day operations be free of jack handles which, in the nature of the business, must constantly be used or, if it is not, that a warning of their presence must be given a visitor. In Chalmers v. Great Atlantic & Pacific Tea Company, 172 Md. 552, 555, 192 A. 419, 420, Judge Offutt for the Court distinguished between situations where the injuries were caused by abnormal conditions of the business premises that created the danger, which the visitor had no reason to anticipate or guard against and situations such as those presented by the evidence in this case. There the business was a grocery store. He noted that boxes, cartons, crates and bags are found in such stores scattered in more or less disorderly arrangement, and said: 'Visitors to such a store must expect to find and to guard against those conditions, because they are an ordinary and usual incident of the business. One is not required to conduct an ordinary and lawful business at his peril merely because persons visiting his premises for business purposes may be injured by conditions commonly incident to the business, when they could have avoided the danger by exercising the degree of vigilance which the conditions required. If one enters a store where he must...