Pellicot v. Keene

• Decision Date: 18 November 1942
• Docket Number: 34.
• Citation: 28 A.2d 826,181 Md. 135
• Parties: PELLICOT v. KEENE.
• Court: Maryland Court of Appeals

28 A.2d 826

181 Md. 135

PELLICOT v. KEENE.

No. 34.

Court of Appeals of Maryland

November 18, 1942

Appeal from Court of Common Pleas of Baltimore City; Edwin T Dickerson, Judge.

Action by Daniel Keene, infant, by his father and next friend William J. Keene, against Adam Pellicot, for injuries suffered in fall in store. From a judgment for plaintiff defendant appeals.

Reversed.

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

Michael J. Manley, of Baltimore (Benjamin N. Kline and Harley, Wheltle & Manley, all of Baltimore, on the brief), for appellee.

Before BOND, C.J. and SLOAN, DELAPLAINE, COLLINS, MARBURY, and GRASON, JJ.

GRASON, Judge.

On the third day of April, 1941, and for some years prior thereto the appellant conducted a grocery store at the southeast corner of Federal Street and Rutland Avenue, known as 1801 East Federal Street, Baltimore City. The entrance to the store is at the corner. To the north, along Federal Street, is a large show window, and to the east, along Rutland Avenue, there is also a large show window. From counter to counter is an open space six feet wide, used by customers. At the front of the store, next to the show window on Federal Street, running southerly and parallel to the west wall, is a card file and table extending one foot, eleven inches; immediately next to this, and forming a part of it, is a high display rack five feet six inches long; the width of each is two feet six inches. From this point is a passageway one foot eight inches wide; and immediately next is a counter two feet three inches wide. This passageway is used by the proprietor and his clerks in going from behind the counter and display rack to the space in front reserved for customers. Behind the display rack from the passageway, a distance of three and a half feet, is a trap door from which steps lead to the cellar. On the day of this accident the trap door was open.

About noon Mrs. Keene came in the store to make some purchases. With her was her son, six years old. A clerk was waiting on her and the son was urging his mother to buy him some cakes. While the mother was being waited on by the clerk, the child wandered through this passageway, around back of the display rack and fell through the open trap door to the cellar and was injured. The child said he was after some cakes at the back and top of the display rack.

Suit was instituted by the infant, through his father, against the storekeeper in the Court of Common Pleas of Baltimore City, the general issue plea was filed, issue joined thereon; the case tried in that Court, resulting in a verdict against the defendant, and from a judgment entered thereon this appeal was taken.

It is charged in the declaration that the infant plaintiff was an invitee, and while using due care and caution, fell through a trap door forming a part of the floor. In response to a demand for particulars, counsel for plaintiff stated: That the trap door 'is in the rear of the counter, but immediately adjacent to the aisle separating the grocery counter and the counter on which cakes were displayed and immediately behind said cake counter and stand.'

The controlling question in this case is: Did the storekeeper invite this child behind the counter? If he did it was his duty to the child to use due care and caution to keep the aisle behind the counter in such a condition as to prevent the child, using due care and caution that one of his age would use for his protection, from harm.

In the case of MacDonough v. Woolworth Co., 91 N.J.L. 677, 103 A. 74, it is stated: 'She [the customer] saw counters with merchandise displayed upon them, one extending down the middle of the store and one down each side, the latter in front of wall shelves of merchandise, with a space for the saleswomen to work between the wall shelves and the counters. Such an arrangement in itself extended no invitation to a customer to go behind these side counters into the space which was obviously for employes, and in a case involving nothing more, there being no evidence of invitation, a court and not a jury question would arise.'

In the case of Cumberland v. Lottig, 95 Md. 42, 51 A. 841 842, a boy six years old was taken by his mother on the roof of their house at night to look into an adjoining theatre. He caught hold of an electric wire and was injured. Judge Fowler said: 'The roof was not intended, nor had it ever been used, for any such purpose as the plaintiff and his mother and their friends were using it.' The...