Berzups v. H. G. Smithy Co.

Thompson, J., delivered the opinion of the Court. John A. Berzups, appellant, sued his landlords and their management agent, appellees, for personal injuries, alleging that the landlords were guilty of negligence, maintenance of a nuisance and breach of contract. The Circuit Court for Montgomery County, Judge Ralph G. Shure presiding, granted a motion for a directed verdict on the basis that Mr. Berzups had failed to prove negligence or nuisance and, in addition, that he was guilty of contributory negligence as a matter of law. Resting our decision upon the basis that Mr. Berzups was guilty of contributory negligence, we affirm the judgment. ¹⁵⁹ Mr. Berzups resided in Apartment No. 110, 8712 Colesville Road, Silver Spring, Maryland, from August 1967 until January 9, 1969, the date of the accident involved in these proceedings.

Mr. Berzups testified that as he left the apartment building to go to work, at about 7:20 a.m. on January 9, 1969, he fell and suffered substantial injuries. He stated that immediately prior to the accident he had left his apartment and walked to the lobby and through the front door when he stepped on some ice in a crack in the front step. The crack was about two inches wide and about ten inches long. The mat which was usually on the front step was not present on this occasion; he stated that at times the mat was moved to the side of the step for washing and cleaning.

The steps were a part of the area under the control of the appellees for the common use of their tenants. Mr. Berzups’ testimony is so devastating to his cause, that we set it out: “Q. Now, you continued on out the door, the right hand door. How many steps did you take before you fell? A. I made about a couple of steps.

Q. Do you recall which foot it was that you stepped in the crack? A. It was my right foot. Q. And you say there was ice in there, is that correct? A. Yes, sir.

Q. Now, you were looking down as you walked, were you not? A. I was looking down. Q. And you were looking where you were walking? A. Yes, sir.

Q. And you saw this crack before you stepped in it? ¹⁶⁰ A. I saw the crack and other cracks also on the step. Q. Also, you put your foot in the crack to take a step, is that correct? A. I walked normally and I put my step into the crack and fell down, slipped and fell down. Q. Now, did you notice anything else on the step other than that crack?

A. I noticed on the step, other than cracks, ice. Q. The step was not completely covered with ice, though, was it? A. No, sir. Q. And you made no effort to step over or away from this crack, did you?

A. As I said I walked normally, reasonably, normally, and I stepped just over the crack and fell down. Q. I am not sure I understood you, Mr. Berzups. Did you say you stepped over or in? A. Yes, I stepped in the crack, normally, normal, walking on the step.

Q. You could have stepped over or around the crack, though, couldn’t you? A. As I normally walked I stepped in the crack, let us say. Q. If you didn’t walk normally, Mr. Berzups, could you have avoided this crack, without walking normally? A. There were around several cracks and several places of ice.

Q. You could have avoided the crack, could you not have? A. No, I couldn’t avoid it. ¹⁶¹ Q. You couldn’t step over it? A. But then I would step in the other crack with ice. Q. Did you see ice in all the cracks?

A. Around very many cracks and many ice. There were around many cracks and many ice. Q. I see. Now, there wasn’t very much ice around this hole that you stepped in, was there?

A. There was not much. Q. Right around the hole itself there was not much? A. Yes, sir. Q. I am not sure.

I want to make sure we understand. There was very much, very little ice around the hole itself? A. Yes, sir. Q. There was very little ice?

A. That’s right. Q. Did you make any effort to step on the area right next to the hole? A. I walked normally, and I stepped into the crack and fell down. Q. My question is did you make any effort to step in the area right next to the hole?

A. It was not necessary, because I was reasonably walking. Q. You say you were reasonably walking? A. Yes, sir. Q. I see.

What you are saying is that this area was not a dangerous area? A. I never think that it is dangerous. It wasn’t then. ¹⁶² Q. It was the ice that caused you to fall, isn’t that correct? A. That’s right.” In reviewing the propriety of the lower court’s ruling on a motion for directed verdict, this Court must consider the evidence and all reasonable inferences to be drawn therefrom in a light most favorable to the party against whom the motion is made.

Clayborne v. Mueller, 266 Md. 30, 33 , 291 A. 2d 443 (1972); Berg v. Merricks, 20 Md. App. 666 , 669 n. 1, 318 A. 2d 220 (1974). It is further required that: “In order to withdraw a case from the jury on the ground of contributory negligence, the evidence must show some permanent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds.” Rooney v. Statewide Plumbing, 265 Md. 559, 564 , 290 A. 2d 496 (1972). “A verdict for a defendant must not be granted if there is any legally relevant and competent evidence from which a rational mind can infer a fact at issue.” Reiser v. Abramson, 264 Md. 372, 376 , 286 A. 2d 91 (1972). Prosser stated it well, when he said “. . . where enough uncertainty can be conjured up to make an issue as to what the reasonable man would have done, that issue goes to the jury.” W. Prosser, Torts 420 (4th ed. 1971). In reviewing the testimony, it is patent