Smith v. Kelly, 357

• Decision Date: 11 May 1967
• Docket Number: No. 357,357
• Citation: 229 A.2d 79,246 Md. 640
• Parties: Frances T. SMITH and J. Claude Smith v. Margaret S. KELLY et al.
• Court: Maryland Court of Appeals

Page 640

246 Md. 640

229 A.2d 79

Frances T. SMITH and J. Claude Smith v. Margaret S. KELLY et al.

No. 357.

Court of Appeals of Maryland.

May 11, 1967.

Samuel D. Hill, Baltimore (George W. White, Jr., and Buckmaster, White, Mindel & Clarke, Baltimore, on the brief) for appellants.

C. Stanley Blair, Bel Air (Cameron, Close, Reed & Blair, Bel Air, on the brief) for appellees.

Before HAMMOND, C. J., and MARBURY, OPPENHEIMER, McWILLIAMS and FINAN, JJ.

MARBURY, Judge.

J. Claude Smith and his wife, Frances T. Smith, plaintiffs-appellants, sued Margaret S. Kelly and her husband, Frederick H. Kelly, individually, and as partners trading as Kelly's Laundromat, for injuries received by Mrs. Smith, a patron, as the result of her being struck by a piece of a drum of an extractor which broke off and was flung from the drum which contained a spinner basket revolving at 1750 r. p. m. The drum, in which the spinner basket revolved, was stationary. At the close of the Smith's case, the trial court directed a verdict in favor of the defendants-appellees. From the judgment on the verdict the Smiths appealed.

In their amended pleas, appellees denied the existence of the partnership as alleged and asserted that Kelly's Laundromat was solely owned by Margaret S. Kelly. As a part of the business of the laundromat, self-service, coin-operated, automatic machines for laundering clothes and extracting water from the washed clothes were provided for the patrons. Customers usually operated the self-service machines without supervision or assistance from employees of the laundromat, although help and instructions were available upon request.

On the morning of October 20, 1962, Mrs. Smith, as had been her custom for approximately two years, did her weekly laundry at Kelly's. She used the extractor without supervision or guidance, and she never asked for nor received instructions from anyone connected with the laundromat since she was familiar with the extractor's use. She placed her wet laundry in the spinner basket inside the drum of the extractor through the opening at the top. She testified that she put the clothes in the spinner basket in the usual manner, covered the clothes with a protective cloth to keep them in the basket, lowered the top and put a coin into the machine to start it. She noticed nothing unusual about the extractor. During the machine's operation, Mrs. Smith stood about ten feet away from it. After standing there about five minutes, she heard a noise, which sounded like a stick drawn along a picket fence, coming from the extractor and she was struck on the knee by a piece of fiberglass which had broken off from the top of the drum of the extractor. At that time or within a few seconds after, a piece of cloth from a pair of denim trousers which were in the extractor flew by her. After she was struck, she did not examine the extractor to see what had happened; and she did not remove the clothes from the extractor.

Mr. Kelly, who helped run the business and who was in another part of the building at the time of the injury, heard the noise and went to investigate. He testified that the noise he heard was unusual for the extractor, but he had heard a similar noise before when clothes which had partially escaped from the basket beat on the inside of the drum while they were spinning. When he had heard this noise before, the only consequences had been the fraying of an article of clothing in the extractor. He stopped the extractor by pulling the plug from the electrical outlet. He observed that the fiberglass top of the drum, which was connected to the lower part of the drum made of metal, had separated from the lower portion of the drum and was sitting on the lower portion in a cocked position. A metal band which held together the fiberglass top and the bottom of the drum was loose and had slid down on the lower portion of the drum. A piece of fiberglass was broken off from the place where the top was connected by the metal band to the lower portion of the drum.

Mr. Kelly did most of the repair and maintenance work on the self-service machines. He was in charge when his wife was not there, usually in the early morning and at night near closing time. He testified that he made no regular inspection of the machines and did not check them unless he heard a sound which was not normal for the machines operating under normal conditions.

Appellants contended that the trial court erred in directing a verdict for appellees on the basis that the evidence clearly showed negligence either under res ipsa loquitur or under the law of bailment for hire.

The conditions for the application of the doctrine of res ipsa loquitur are: (1) That the apparatus which causes the injury must be such that in its ordinary operation no injury is to be expected from it; (2) that both inspection and user...