Cohen v. Herbert

¹⁹⁷ Pattison, J., delivered tbe opinion of the Court. In this case an action was brought by the appellee, Frank Herbert, against Aaron Cohen and Michael Hartz, owners of the premises known as 322 West Baltimore Street, in the City of Baltimore, and the appellant, Pereth Cohen, trading as Eagle Underwear Company, lessee of a portion of said premises, for injuries sustained by the plaintiff in falling down an elevator shaft, from the first floor to the bottom of the elevator pit, in the rear of said premises, caused, as claimed by the appellee, by the negligence of the defendants. The accident happened on the eighth day of September, 1921, and the building in which it occurred, a five-story structure, fronting on Baltimore Street, a few doors east of Eutaw Street, and extending back to Garrett Street, was at the time owned by said Aaron Cohen and Michael Hartz, with a tenant occnping each of its floors. The Brockton Shoe Company occupied the first floor, with the exception of a space seventeen feet by twenty feet in the northwest corner of the building, in which there were a hallway, storage room and elevator shaft.

This place, it seems, was for the joint use of all the tenants of tbe building, including the tenant on tbe first floor, except tbe elevator, which was for the joint use of the tenants of the upper floors, it not being needed by the tenant of the first floor. The tenants of the upper floors were each required to pay one-fourth of the cost of the current consumed in its operation, and each of these furnished his own operator and used the elevator, as lie needed it, in getting his merchandise to and from the floor occupied by him. There is an entrance to the hallway, as well as to the store room, from Garrett Street. The entrance to the hallway is spoken of as the west entrance, and the entrance to the store room, also called a hallway, is referred to as the east entrance.

There are double doors at the entrance to the west hallway, which hallway extends towards the south thirteen feet, and at its extreme southern end, and to the right of it, is the elevator shaft, and across the hallway from the shaft, at a distance of five and one-half feet, and immediately in ¹⁹⁸ front of it, is a door leading from the east hallway, and at the end of the west hallway, immediately facing’ the entrance thereto, is a door leading into another hallway, which leads westerly to the' hallway at the extreme west of the building, Which extends southward to tire storeroom in the rear of the"premises occupied by the shoe company. In 1921, the appellee, á builder and contractor, was employed by the Brockton Shoe Company” to alter the storeroom occupied by it on the first floor of the premises mentioned. The alterations consisted of changing the front of the store, putting in two front entrances, dividing the store into two parts by a longitudinal partition, and putting a croas partition in the rear of the store. The appellee started to make. these alterations about August 20th, 1921, and about September 1st, 1921, Benjamin Schultz met the appellee upon the premises, 322 West 'Baltimore Street, to contract with him for the plaster work.

Because of the great traffic upon Baltimore Street, it was decided that the plastering materials should be stored' and' mixed in 'Garrett Street, in the rear of the- building, and canned from that point, through the hallways mentioned, to the front of the building. To this end the appellee and Schultz walked from the front of the building, where they were then talking’, through the hallway leading therefrom towards the west entrance- on Garrett Street, stopping in the open' doorway at the south end of the west hallway, and from that point the appellee showed Schultz the west entrance. The double doors were then open, 'and Schultz was directed to carry the mortar through that entrance to the front of the building by the use of said hallways. ' ' ' ■ At that time the solid panel door to the elevator shaft, only a few inches from the door in which they stood, Was down, and the appellee observed not only this door, but also a smaller panel door on the same side of the hallway, nearer to the entrance, both of which were closed, but he did not know that either- of these doors wa3 in front of an elevator shaft, nor did he know there was an elevator shaft located in that' part, of the building. About' a. year previous the ap ¹⁹⁹ pellee had made some alterations to the same floor of the building, and was at work there for a period of several weeks, but at that time the materials used by him were all brought in through the front- of the store, and he had no occasion to familiarize himself with the rear arrangement of the premises ; and it was not until he started the work in 1921 that he had any familiarity at all with the rear parts of the building.

As we gather from the record, only once, or possibly twice, before the occasion mentioned, had the appellee passed through these hallways leading from the front to the rear of the building, which was the extent of his knoweclge as to them. The appellee, who was expecting the plasterers to be at the building on the morning of the 8th day of September, 3923, to go to work, went directly to the rear of the building on Garrett Street, where he had' directed the plastering materials to be stored and mixed, without passing through the building from front to rear, and when he arrived there, about 9 o’clock in the morning, he' found the laborers were at work, carrying mortar to the front of the building through the west entrance. While talking with them Hr. Schultz and his son came out of the east entrance.

Schultz said to him, “You had better get out of the way, for they (referring to the hodcarriers) will mess you up.” He then stepped through the east entrance into the east hallway, and there engaged in a conversation with Hr. Schultz and his son. He said to Hr. Schultz, “How about material ?” and Schultz said, “You had better go and telephone for sand,” whereupon the appellee said, “All right, I am going in and call up.” He then turned and walked southward in the east hallway to the door on the right leading into the west hallway, and, as he testified, “I walked in this hall-way (meaning the west hallway) and, seeing this opening and knowing something about the outlines of the building, I thought this was going into the hallway (meaning the hallway beyond), and as I walked in there T dropped into space and went down.” As he stated, it was not until he “was down in the basement, down in that pit” that he knew there was an elevator in that part of the ²⁰⁰ building.

He was then asked, “When you went into the corridor wbat light, if any, was there in the hallway ?” He said, “There was no artificial light, just a light that came from the western end side door,” and at the time the hodcarriers were walking in and out of the doors. He was then asked if there was any safety gate, to which he replied, “No, sir, I surely did not lift it up; I did not want to get killed or commit suicide.” He also testified that he had never before attempted to go to the front of the building through its entrance on Garrett Street. The east hallway, as we have said, was immediately to the east of the west hallway, and one going through it to the front of the building went only a few feet southward in it before he was required to pass through a door on the right, in the partition dividing the east from the west hallway, which led into the west hallway. This door was immediately opposite the elevator shaft, five and one-lialf feet away, and immediately to his left was the door at the south end of the west hallway, the one in which the appellee stood on the occasion when he pointed out to Schultz the west- entrance upon Garrett Street, through which he was to carry the mortar to the front of the building, and it was this door through which the appellee should have passed in entering the hallway that led to the one-on the west side of the building, through which he would have passed in going to the front of the building, but it seems that he took the open shaft of the elevator for the open door, though, to have passed through that door, he would have had to turn to his left, after entering the west hallway.

He was asked, “Didn’t it occur to you that you should first go southeast -before you made that right turn ?” Answer, “If I had been more familiar with it — I had enough ideas of the general outlines of the building to know there was an elevator in the front, but I did not know there was one in the back; it threw me off my guard completely.” He was asked by the court, “Then you turned off that hall and kept straight on?” Answer, “I turned and went right into the elevator.” Question, “And you forgot all about, before you did that, that you should have gone southeast?” An ²⁰¹ swer, “There was not that much time to think. You certainly looked for certain protections.” Upon cross-examination he was asked if he could not “tell that an elevator shaft is an elevator shaft unless the door is down?” Answer, “If I stand there for any length of time, sure I could see it, but I walked across there and I thought I was hitting this hallway here (indicating) ; that is, I walked right straight through.” He further testified that it was dark in the shaft, and he could not see that it was a shaft and there was nothing there to warn him of that fact. “You did not know what it was, did you ?” Answer, “Of course not, as far as knowing what it was; I thought it was just this hallway.” Evidence as to the darkness of the hallway at the point where the accident occurred was conflicting, and it was also conflicting as to the weather conditions. By some of the witnesses it was said that it was a “right bright day,” by others, that “it was not a bright, sunshiny day,” and by some it was said that the weather was cloudy, though the weather report had it fair and clear. The west hall, on the side of which was located the elevator shaft, was chiefly lighted through the doorway on Garrett Street, though some light, no doubt, was admitted through the open door in the partition between the hallways, and possibly some light might have shone through the door at the south end of the said hallway, but at the time of the accident, as was testified by the appellee, the hodcarriers were going in and out the entrance door thereto, and the light from the doors did not shine directly upon the shaft.

It is, therefore, difficult to say to what extent the hallway was lighted. It is clearly shown from the evidence that the shaft was open and unguarded at the time of the accident. Both the panel door and the slat door, which is more often referred to in the evidence as the gate, were up at the time, with nothing to guard the open shaft. On the morning of the 8th of September, a number of boxes of materials or merchandise, consigned to the appellant, Pereth Cohen, the tenant of the second floor of the building, were left at the Garrett Street entrance thereto.

These ²⁰² boxes were placed upon the elevator and were carried to the second floor by one Preisinger, an employee of Peretb Oolien. Schultz and son, who reached the premises about 7.30 o’clock on the morning of that day, testified that they several times passed through the building from front to rear and from rear to front, while their men, the hod-carriers, were carrying the plaster into the building through the rear entrance; that in going from front to' rear they could observe the location of the elevator shaft and could see whether the door or gate thereto was up or down, but, in entering the building from the rear, it was difficult to observe the shaft or elevator. This was due, as they