Riganis v. Mottu

• Decision Date: 23 January 1929
• Docket Number: 59.
• Citation: 144 A. 355,156 Md. 340
• Parties: RIGANIS v. MOTTU.
• Court: Maryland Court of Appeals

144 A. 355

156 Md. 340

RIGANIS v. MOTTU.

No. 59.

Court of Appeals of Maryland

January 23, 1929

Appeal from the Baltimore City Court; H. Arthur Stump, Judge.

Action by Harry Riganis against Theodore Mottu, trading as Theodore Mottu & Co. Judgment for defendant, and plaintiff appeals. Reversed and remanded for a new trial.

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

George P. McCeney and Philip L. Sykes, both of Baltimore, for appellant.

Joseph Townsend England and Fendall Marbury, both of Baltimore, for appellee.

OFFUTT J.

This is an appeal from a judgment of the Baltimore city court on a directed verdict for the defendant in an action on the case for personal injuries brought by Harry Riganis, the appellant, against Theodore Mottu, trading as Theodore Mottu & Co., the appellee.

There is in the record evidence tending to show facts which may be thus stated: Riganis needed some lumber for shelving at a laundry which he and a Mr. Allen, his partner, proposed to operate in Baltimore, and he (Allen) and a carpenter went to the appellee's lumber yard on Pennsylvania avenue in that city to procure it. They went into appellee's office and told "the men in the office" what they wanted, and he asked them if they knew precisely what sizes they wanted. Riganis answered that they would "like to see" the lumber to be sure they got the kind they needed. They were then told by the "man in the office" to go into the yard and ask "one of their men" to direct them to certain steps which led to the place where lumber such as they wanted was to be found, and then to come back to the office. They went into the yard, and found there a colored man loading a truck. They asked him where they would find the particular kind of lumber which they needed, and he directed them to go up a flight of steps to a balcony or platform on which that sort of lumber was stored. That platform was from 16 to 20 feet from the ground, and the lumber was so placed as to leave a gallery or way about 3 feet wide between it and the edge of the platform, so that persons desiring to inspect it would be required to walk along that narrow gallery or way. And one so walking along it would have on one side the piled-up lumber and on the other the outer edge of the platform, from which there was a sheer drop to the ground below. Running along that edge was a railing about 3 feet high, consisting of 2 by 4 or 4 by 4 lumber, resting in slots cut in upright pieces which supported it.

Riganis and his companions went up the steps to the gallery, and eventually found what they wanted. When they did, Allen took a piece of paper and a pencil, and was jotting down memoranda, and as he was doing that, and while they were standing there in the gallery or way, Riganis leaned against the railing, which gave way, in consequence of which he fell to the ground and was injured.

As stated, the rail rested in a slot cut in the upright which supported it. The rail itself appeared from subsequent examination to be in sound condition, but the slot in the upright had become worn, and, to quote one of the witnesses "It had been there for a long time and by people going up there, you know, this 2X4 or 4X4 in there hitting against this side piece all the time wore it out, and he put his weight against it and it went right over, one end of it did and I said no wonder it is rotten." From that testimony and from other testimony in the record it may be inferred that such pressure as Riganis exerted against the rail forced it against the outer edge of the slot, and that, because of the worn and defective condition of that slot, that end slipped out and the railing fell.

Upon these facts the trial court ruled (1) that there was no legally sufficient evidence that appellee was guilty of primary negligence, and (2) that it sufficiently appeared that appellant was guilty of such contributory negligence as barred his right to recover, and, by granting defendant's first and second prayers, directed a verdict for defendant. We are unable to accept either of those conclusions, which we will consider in their order.

Appellant was on that part of appellee's premises where the accident occurred as an invitee (4 Words and Phrases, Third Series, p. 526; 20 R. C. L. "Negligence" § 5845 C.J. 814), and appellee was bound either to exercise ordinary care to see that such premises were reasonably safe for him or, if they were not, to warn the appellant of any latent or concealed danger (Fulton Building Co. v. Stichel, 135 Md. 545, 109 A. 434; Bethlehem Steel Co. v. Variety Co., 139 Md. 318, 115 A. 59, 31 A. L. R. 1021; Kann & Co. v. Meyer, 88 Md. 541, 41 A. 1065). It may be inferred from the evidence to which we have referred that he failed to discharge that duty, and that the accident complained of was caused by such failure. We have here no question of deviation, because it may be inferred that the appellant was expressly invited by appellee to go to the precise spot where the injury occurred. He went there to inspect lumber with a view of buying it, if it suited his purposes. He was accompanied by his partner and by the carpenter whose judgment he needed to determine whether the lumber was suitable. He could only reach the lumber by way of the narrow gallery to which we have referred, and he was obliged to stand in that gallery to inspect it. On its dangerous side that gallery was apparently guarded by the railing to which we have referred. To one unfamiliar with the yard, it may well have appeared that the purpose of that railing was to protect persons using the gallery, and, from its substantial appearance, that it was adequate for that purpose. And the appellee should have anticipated that strangers...