Meister v. Alber

Briscoe, J., delivered the opinion of the Court. The appellee brought suit in the Superior Court of Baltimore to recover for personal injuries sustained by him, caused by a fall through an elevator shaft in a building owned by the appellant. The judgment was for the plaintiff and the defendant has. appealed. The main questions in the case arise upon the prayers and relate to the negligence of the defendant and to the contributory negligence of the plaintiff. The plaintiff’s prayers as granted by the Court are conceded to be free from any valid objection, and the exception to the modification of the defendant’s second and fourth prayers was abandoned at the hearing in this Court. So the questions to be passed upon are contained in the rulings of the Court upon the rejection of the defendant’s first and fifth prayers and its modification of the sixth. [76] At the close of the testimony on both sides the Court was asked by the defendant’s first prayer to withdraw the case from the jury, because upon the undisputed evidence it is apparent that the plaintiff so directly contributed to the happening of the accident by his own want of ordinary care and prudence, that he cannot recover in this action. This prayer being in the nature of a demurrer to the evidence it becomes necessary for us to examine the facts of the case. The plaintiff testified that he was a butcher by trade and at the time of the accident had been employed by the defendant for over fifteen months at his place of business, corner of Pennsylvania avenue and Retreat street, Baltimore, and his work was to make sausage; that on the floor of the building, which is on a level with the street, there are two rooms — one called the slaughter-house and the other the cold-storage room, and between these there is an elevator shaft, the floor of the elevator being used as a passage between the two rooms, the former being about one foot higher than the cold-storage room ; that this elevator floor is the only means of communication between the two rooms, and the elevator was used by the defendant and his employees in taking meat between the different stories of the building, which consists of five stories, one below and four above the ground. He further testified that on the morning of the accident he was told by the defendant to take sausage meat into the cold-storage room, and to •bring out cold meat and to begin making sausage, which was his daily occupation; that on his return he stepped in to take the elevator, feeling certain it was in its place, and fell 24 feet to the cellar below. There was other testimony on the part of the plaintiff and the defendant at the trial below, but from a careful examination of the record it will be found that the decisive and controlling fact in the case is the glaring act of carelessness on the part of the plaintiff in negligently attempting to cross the elevator floor without ascertaining whether it was in the place where he left it. According to his own testimony he was in a hurry, and [77] in his own language, “If he had stopped long enough and looked extra” he would have seen that the elevator was not there. He was a man in the full possession of all his faculties, had been employed in the same work for over fifteen months, and was thoroughly acquainted with the surroundings of the building. The testimony further shows that he was in the habit of operating the elevator in going from the different rooms of the building and also knew that it was being constantly used by the other employees of the house. There was sufficient light for him, either before he left the cold-storage room or after he reached the platform from which he fell, if he had exercised reasonable caution and vigilance, to have seen whether or not the elevator floor was in place. The exercise of the most ordinary care, it seems to us, on the part of the plaintiff, would have prevented the injury complained of. The principle of law governing these cases is thus stated by this Court in Lewis v. B. & O. R. R. Co., 38 Md. 599 : “ Without reviewing the many cases in which the subject of negligence has been considered, the question in this and in all cases of like kind is whether the injury complained of was caused entirely by the negligence or improper conduct of the defendant or whether the plaintiff so far contributed to the same by his own negligence or want of ordinary care and prudence, that but for such negligence or want of care and prudence the injuiy would not have happened. In the first case the plaintiff would be entitled to recover, in the latter he would not, unless the defendant by the exercise of care and prudence, might have avoided the consequences of the plaintiff’s negligence.” But, even if it be assumed, as stated by the appellant in his brief, that the act of the appellant in moving the elevator without notice was negligence, and that this negligence contributed to the accident by causing the appellee to rely upon the absence of such notice in failing to ascertain the absence of the elevator, yet, as this was an act of negligence, prior in point of time to the act of the appellee in failing to take proper [78] precautions to ascertain whether the elevator was in position, it did not excuse him from using ordinary care in order to avoid the consequences of the appellant’s negligence. (Decided January 6th, 1897,) Now, while it is true, the question of negligence is ordinarily one of fact and not of law, yet says this Court in Cumberland Valley Railroad Company v. Maugans, 61 Md. 60, cases do occur in which it becomes the duty of the Court to interpose and withdraw them from the consideration of the jury. It must present some prominent and decisive act in regard to the effect and character of which no room is left for ordinary minds to differ. We are of opinion that in the present case there was contributory negligence or want of ordinary care on the part of the plaintiff, and that the defendant’s first prayer, withdrawing the case from the consideration of the jury, should have been granted. We find nothing in the case of Morgolofski v. The People's Bank, 75 Md. 432, relied on by the appellee, in conflict with the views herein expressed. Entertaining this view, we do not find it- necessary to pass upon the rulings of the Court upon the other prayers. Judgment reversed, without awarding a new trial, with costs.