Pinkerton v. Slocumb
Decision Date | 10 November 1915 |
Docket Number | 6. |
Citation | 95 A. 965,126 Md. 665 |
Parties | PINKERTON v. SLOCUMB. |
Court | Maryland Court of Appeals |
Appeal from Baltimore Court of Common Pleas; Walter I. Dawkins Judge.
Action by Minnie V. Slocumb against Milton H. Pinkerton. Judgment for plaintiff, and defendant appeals. Reversed.
William Colton, of Baltimore, for appellant. J. Cookman Boyd, of Baltimore (Morrill N. Packard, of Baltimore, on the brief) for appellee.
This is an appeal from a judgment obtained by the appellee against the appellant for damages for personal injuries sustained by her, by reason of the alleged defective condition of a stairway leading to the back yard of the premises where she then lived.
The case is peculiar in several respects. The declaration alleges that the defendant is owner, individually and as executor of Eleanor Lucinda Pinkerton, deceased, of the leasehold property known as No. 327 East Twenty-Fifth street, in Baltimore City, and as such rented the property to the plaintiff. The testimony shows that it was fee-simple property, and that, although the appellant is the only heir of Mrs. Pinkerton and devisee of the property in question, he had filed a caveat to the will and was administrator pendente lite of the estate. The record does not include the will or the caveat, or explain why the latter was filed; but it does show that the appellant verbally rented the property, either to the appellee or her husband, or to both. If it was material to determine to whom it was rented, it would be difficult to sustain the allegation in the narr. that it was rented to the appellee, although she and her husband were both present at the time of the renting. But as the liability of a landlord is practically the same to a member of the family of a tenant as to the tenant himself for personal injuries sustained by reason of a defective condition of the premises, we will determine the case regardless of that allegation in the narr.
There are 22 bills of exception relating to the admissibility of evidence, and another which embraces 3 prayers of the plaintiff and 15 offered by the defendant (including some which sought to take the case from the jury), besides a number of special exceptions to the plaintiff's prayers but under our view of the case it will not be necessary to discuss the exceptions or the prayers in detail. The narr alleges that the defendant agreed to put the property in repair, and keep it in repair during the tenancy, and the other part of it most material to our discussion is as follows:
Again we there said:
"So it seems to us that the correct rule in a case such as the one under consideration is that the mere failure of the landlord to make repairs which he had agreed to make cannot make him responsible to the tenant, or a member of his family, for damages for personal injuries sustained by reason of the defective condition of the premises, whether such suit be in assumpsit or in case, but in order to recover such damages there must be shown some clear act of negligence or misfeasance on the part of the landlord beyond the mere breach of contract."
That opinion concluded by saying:
"So, although we are of opinion that a landlord, under contract to repair, may under some circumstances be liable for damages for personal injuries by reason of a negligent failure to make repairs, his negligence must be clearly established as the foundation for such liability."
And we went on to say that there was no such legally sufficient evidence of it as would have justified the court below in submitting the case to the jury.
When asked by the court, "Do you say the fourth step?" she replied:
"Yes, sir; the fourth step from the bottom, the edge went off that, and my foot was on that, and that threw me, and I grabbed at the railing, and that went off, and I was thrown to the yard on top of that post."
The post itself and pictures of it and the broken stairway were admitted in evidence against the objection of the defendant; but, although exceptions were taken, we will not stop to pass on them, and will for the purpose of this discussion assume the action of the court in admitting them to have been proper, as apparently the bottom of the right-hand post, the one which broke off, was in bad condition at the time of the accident, although there was nothing on the surface to indicate it. The appellee and her husband testified that some time during the summer before the accident those steps were repaired. Ben S. Johnson, a colored man who did the repairing, said that he went to that house on August 26, 1912, and did four days' work, including during that time the repairs on the steps and other work. In speaking of those repairs, the appellee said:
She was asked if the post was off, and replied:
The husband of the appellee said that when they were repaired he was back and forth to and from his work, and was home every evening; that he did not see the man working on them, but he saw the evidence of their having been repaired. A part of his testimony is as follows:
The defendant said he thought the repairs were made in October; that he had Ben Johnson make the repairs, but he was not at home during the day. This appears in his testimony:
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