O'Neill & Co. v. Crummitt

• Decision Date: 17 March 1937
• Docket Number: 14.
• Citation: 190 A. 763,172 Md. 53
• Parties: O'NEILL & CO. v. CRUMMITT.
• Court: Maryland Court of Appeals

190 A. 763

172 Md. 53

O'NEILL & CO. v. CRUMMITT.

No. 14.

Court of Appeals of Maryland

March 17, 1937

Appeal from Superior Court of Baltimore City; Rowland K. Adams Judge.

Action for damages for injuries by Hazel Irene Crummitt against O'Neill & Company. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

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

Robert E. Coughlan, Jr., of Baltimore, for appellant.

Charles Ruzicka and J. B. Randol Carroll, both of Baltimore (Allen A Davis, Jr., and Brown & Brune, all of Baltimore, on the brief), for appellee.

JOHNSON Judge.

This is an appeal by O'Neill & Co., from a judgment rendered against it by the superior court of Baltimore city in favor of Hazel Irene Crummitt, who brought suit to recover damages for personal injuries sustained by her and allegedly resulting from the negligence and carelessness of the defendant's agents and servants while plaintiff was shopping in its department store in Baltimore city.

The declaration contains two counts, the first of which alleges that the defendant owned and operated a department store and general merchandise business establishment at the southwest corner of Charles and Lexington streets, to which the public was invited for the purpose of purchasing merchandise, and on January 23, 1935, at 11:15 a. m. while the plaintiff was in said establishment at the invitation of the defendant for the purpose of making purchases and leaving an elevator at the third floor, which elevator defendant operated for convenience of its customers, she was caused to slip and fall, due to the negligent and careless operation of said elevator by defendant's agents and servants, in consequence of which she was seriously and permanently injured, and such injuries were caused solely by the negligence of the defendant, its agents and servants, without any negligence on her part directly contributing thereto.

The second count is similar to the first, except that it attributes the fall which caused plaintiff's injuries to the negligence of the defendant, its agents and servants in allowing the third floor of its store, a part of which was the elevator landing, to "remain in a slippery and dangerous condition because of a foreign substance thereon." The plaintiff's bill of particulars states (a) that as the plaintiff was leaving the elevator, defendant's agent and servant allowed it to become in motion; (b) that such agent and servant allowed the floor of the elevator to be above the store floor level a certain distance; that the exact nature of the foreign substance upon the floor was unknown to the plaintiff, but solely within the knowledge of the defendant, its agents and servants. During the course of the trial nine exceptions were reserved by appellant to the rulings of the trial court. The first, second, third, fifth, sixth, seventh, and eighth of these relate to rulings upon evidence, the fourth to the court's action in overruling appellant's motion for the withdrawal of a juror and declaring a mistrial, while the ninth pertains to the prayers.

The testimony offered by the plaintiff would have enabled the jury to find that on the morning of January 23, 1935, accompanied by her twelve year old daughter, she visited the store of appellant for the purpose of making certain purchases. In it were two adjoining elevators known as Nos. 1 and 2 which appellant operated for convenience of its customers who desired to shop upon the second and third floors of the building; she and the daughter, after remaining upon the first floor a short while, entered the No. 2 elevator and rode to the third floor in order to shop at the children's department. This elevator was stopped by the attendant at the third floor, the inside and outside doors were opened and the daughter stepped to the floor safely. However, at that time the floor of the elevator was approximately four inches above the level of the third floor of the building and as appellee lifted her right foot to step to the floor of the building, the elevator dropped suddenly, causing her to lose her balance, and when she touched the floor she slipped upon a dirty, greasy substance and fell in such manner that the lower part of her back struck the elevator. Upon the third floor immediately in front of where the elevator stopped to discharge passengers there was a strip of linoleum five feet wide, and according to her the dirty grease was upon this. Being questioned further about this substance, she testified:

"Q. You have testified about some dirty--I don't remember the term--dirty, greasy substance? Did any of that substance get on any part of your clothes? A. Well, that is the reason I knew it was dirty and it was greasy because when my hand--I went to catch myself, my hand slid like this (indicating). I had my glove--it was a kid glove; it was half off; it was hanging, and my hand was full of grease and dirt. It was this hand; it just slid like that (indicating), and when I slid my back hit the edge of the elevator.

Q. Did any of that dirty, greasy substance get on any of your other clothes? A. It was all over my coat and it was all over my stockings.

Q. Where your hand skidded, or slid, did it show a mark of any kind? A. Where this hand went it just left a lighter scrape.

Q. Can you tell the Court and Jury the color of this greasy substance? A. It was either a very dark green or black; very dark. The linoleum and the color of the substance I couldn't tell; it was just grease.

Q. Before you fell did you notice the condition of this floor? A. I never noticed it.

Q. When did you first discover that it was oily and greasy, or greasy substance? A. I never discovered it until I was down on the floor. My hand slid and it left that streak just where my hand had gone, where I tried to catch myself.

Q. Where was this substance? Only in one spot on the linoleum in front of this elevator? A. It was covered all around where I was.

Q. (By Mr. Ruzicka) Will you describe to the Court and Jury the general condition of the linoleum in front of this elevator? A. The linoleum is all across the elevator where you get off. I had looked naturally as far as I could see; you couldn't tell it was on there until after you was down in it and then it was greasy from my hand. This is the way I noticed it."

After falling appellee was picked up and some one furnished her a chair and gave her a glass of water. Subsequently with her daughter and a lady attendant she remained for a short time in the rest room, and after removing the grease from her hands she and the daughter found one of appellant's salesladies and made purchases, later going downstairs and riding home in a cab. From the time of her fall she had pains in her back and on arrival at home was compelled to lie down. The following morning she went about her housework until 10 o'clock when the pain in her back returned in very severe form, so much so that she was unable to move. Dr. Hearn was called and administered to her. The following morning it took her an hour and a half to get out of bed because of pain in her lower spine and right limb, and then Dr. Alessi was called. After giving her a pill and two hypodermic injections which failed to relieve her, he was compelled to administer chloroform in order to put her to bed. Dr. Alessi called in Dr.

Barratt as consultant, and X-rays were made which confirmed their previous diagnosis to the effect that she had sustained a fracture of the little process of the fifth lumbar vertebra and a fracture of the right transverse process of that vertebra. While there was no displacement of the vertebra and the fracture at the time of the trial was apparently healed, its effect was to interfere seriously with the function of the muscles and nerves around the spine and cause, at that point, the muscles to assume an abnormal position from those on the opposite side. At the time of the trial her condition had not materially improved, was not likely to improve further, and she was compelled to wear an orthopedic corset to support her back. Prior to these injuries her physical condition was good. Some employees of defendant denied there was any greasy substance upon the landing floor in front of the elevator, and others testified that the outer elevator door could not be opened unless the elevator floor was level with the landing floor, and the operator of the elevator at the time plaintiff was injured denied any knowledge that she had fallen. Its elevator dispatcher did testify that around 11 o'clock on the day in question he observed a lady sitting on the floor with one or two ladies around her; that she was four or five feet in front of the elevator on the third floor and after being assisted in arising she told him she was not hurt, but he could not identify her as being appellee. However, appellant in its brief and in oral argument before this court admitted appellee had fallen, although denying the fall was in any sense attributable to the negligence of its agents. Near the conclusion of the trial in the lower court it was agreed between respective counsel, with the approval of the court, that the jury should inspect elevator No. 2 and the linoleum in front of the elevator. Such inspection, according to the undisputed testimony, revealed that the outer elevator door could be opened with the elevator floor approximately four inches above or below the landing floor. There was further testimony to the effect that with both doors open, the elevator could have been caused to drop by manipulation of the operator.

We have felt it advisable to make these references to the evidence favoring appellee's contentions before discussing the prayers. At the outset the inquiry...