Ambassador Apartment Corp. v. McCauley

Collins, J., delivered the opinion of the Court. Mrs. Eva K. McCauley, appellee, a school teacher at William S. Bayer School, on May 23, 1943, while entering the drug store of the Ambassador Apartment, appellant, in Baltimore City, was struck on the left leg below the kneecap by a screen which fell from the window of a fifth-floor apartment of appellant, occupied by Miss Bessie E. Evitt. The blow was sufficient to make a cut about one-half an inch long. The tibia was struck and also the anterior tibia muscle.

There was much bleeding, and the leg was quite swollen. She was practically paralyzed as far as the use of the leg was concerned and suffered rather intense pain. It was necessary for her to sleep with her leg propped up. She was sent by her attending physician to the hospital the following day, where she was also examined by a bone specialist.

It was impossible for her to walk for the first three weeks. The doctor discharged her about August 20. She lost §84 in pay as a result of her absence from school. Her doctor and hospital bills amounted to §276.95.

The appellee, here, entered suit in the Baltimore City Court in tort against Ambassador Apartment, Inc., a body corporate, appellant, here, and against Bessie E. Evitt, jointly. After trial before the court, sitting as a jury, a judgment was entered in favor of the defendant, Miss Evitt, ²⁷⁸ and in favor of the plaintiff, Mrs. Eva McCauley, against the Ambassador Apartment, Inc., in the amount of $575. The Ambassador Apartment appeals to this court from the judgment in favor of the appellee. This appeal comes to this court by reason of Rule 9 (c), Trials, of the General Rules of Practice and Procedure adopted by this court on January 30, 1941.

This rule provides: “ (c) Appeal. When a proceeding has been so tried by the court, an appeal from the judgment, if allowed by law, may be taken according to the practice in equity. Upon appeal the Court of Appeals may review upon both the law and the evidence, but the judgment of the trial court shall not be set aside on the evidence, unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The Court of Appeals may affirm, reverse, modify, or remand, as in appeals from equity.” Testimony shows the screen was of wire mesh in a steel frame with two springs on the left-hand side.

It had been in use for about twelve years, exposed to the weather. It was fitted in guides or grooves fastened inside the window casement and on the outside of the window sashes. There were two rings on the bottom of the screen which were used to raise it. The grooves, to hold it in place, were flanges.

The inner flange was about one-half an inch wide, while the outer one was about half that width. In order to remove the screen, it was necessary to push an appliance to depress the springs, push the screen outward and then pull it in. This screen was furnished by the apartment house, as are the screens for all other windows, and are removed by the apartment house in the fall, if the tenant so requests, and are replaced in the spring. Early in May employees of the appellant painted the apartment house on the outside from scaffolding which had been erected, and the work was done under instruction from appellant.

On May 11, twelve days before the accident happened, the window from which the screen ²⁷⁹ fell was painted from the outside. In order to properly paint the window frame and sash, it was necessary to remove the screen. Miss