Ensor v. Ortman

Marbury, J., delivered the opinion of the Court. Suit was instituted by John Bosley Ensor and his wife, Elizabeth A. Ensor, to recover for injuries sustained by the latter when she fell through the deck of the back porch of a house in which they lived, owned by and located on the farm of Mr. and Mrs. Edward F. Ortman, two of the defendants named in the declaration. They also sued, in the same declaration, Mr. and Mrs. Donald W. Ensor, from whom they had orally subleased the premises, and obtained a default judgment against them. The case was heard before a jury in the Circuit Court for Baltimore County, Judge Menchine presiding, and the jury awarded damages on inquisition against the Donald Ensors, and awarded the same damages against Edward F. Ortman (Ortman), the court having directed a verdict in favor of Mrs. Ortman at the close of the plaintiffs’ case.

Following the jury’s verdict against him, Ortman filed a motion for a judgment n.o.v., which Judge Menchine granted. This appeal ensued, in which the sole question raised by the plaintiff-appellants is whether Mrs. Elizabeth Ensor was guilty of contributory negligence as a matter of law, the ground given by Judge Menchine for granting the judgment n.o.v. For approximately seventeen months prior to April 6, 1963, the date of Airs. Ensor’s back porch accident, the plaintiffs had been living in the tenant house on the Ortman farm. During this time there was a written lease of most of the farm between the Ortmaus, as landlords, and Mr. and Mrs. Donald Ensor, as tenants.

Pursuant to the written lease with the Donald Ensors, Ortman undertook to make all external repairs of a structural nature to the tenant house; and Mr. and Mrs. Donald Ensor undertook to make the interior repairs. In January 1963, defendant-appellee Ortman repaired the railing of the back porch of the tenant house which had given way under the weight of the plaintiffs’ three year old son. At this time Ortman remarked to plaintiff Elizabeth Ensor (hereinafter referred to as Mrs. Ensor) that the porch was in bad condition and he stated that he would arrange to have some ⁸⁴ one repair it. He also called Mrs. Ensor’s attention to the porch posts which had come loose, and the porch’s tongue and groove flooring which he said looked “pretty bad.” About one month later, Mrs. Ensor had a telephone conversation with Ortman in which she reminded him of the defective condition of the porch.

In this conversation Ortman advised her to bring such matters of house repairs directly to his attention, as he did not always get messages from Donald Ensor. Date in February 1963 the plaintiffs suspected that Ortman planned to sell the farm and, being anxious to know if they would have to find another place to live, they went to see him to inquire about this matter. Ortman told them that he was going to sell the farm, but that he planned to keep the tenant house and he would like them to remain in it and pay rent directly to him. At this time, Mr. Ensor, in Mrs. Ensor’s presence, asked Ortman whether he would make repairs to the back porch and specifically called Ortman’s attention to the buckling of the floor.

Ortman said that he would make the repairs and in reliance upon this conversation the plaintiffs continued to live in the tenant house. Toward the end of March of that same year, some of the porch’s floor boards were blown loose during a strong windstorm. Plaintiff John Ensor immediately nailed down these loose boards and because “he wasn’t a carpenter” he instructed his wife to call Ortman and request him to inspect the temporary repairs. Mrs. Ensor dutifully telephoned Ortman and was advised by the latter that he would inspect the porch before he went to work that day.

Mrs. Ensor testified that she did not know whether Ortman inspected the repairs or not, but she did know that the porch flooring was not further repaired and it remained in the same defective condition as before the windstorm, more specifically, the buckled condition of the tongue and groove flooring persisted. Six days before the accident, Mrs. Ensor again phoned Ortman and lodged another complaint about the porch. During this conversation Ortman promised to engage a Mr. King to repair the porch, and to send him over the next day. The promise did not bring results and the floor remained in the same “buckling shape” until the time of the accident. ⁸⁵ On April 6, 1963, (a careful reading of the record fails to disclose the hour or the lighting conditions then existing) Mrs. Ensor, while carrying three scatter rugs, stepped out on the back porch and fell.

She described the accident as follows: “Well, I was finishing my chores around the house, and I had changed my clothes to go grocery shopping, and I noticed that I had left approximately three scatter rugs lying, and they hadn’t been shook out, so before I went, I picked up the rugs, and as I went out of the door, I had the inside door open, and that left the screen door to open, and as I opened the door and stepped out I really don’t remember what actually happened. All I know is I saw boards scatter, and I remember I hit * * * these joists. When I regained my senses, my left leg was over the front part of the porch where the steps are, and my right leg was in a hole, and I was straddled, like, on a joist.” On cross-examination the following colloquy took place: “Q. And I believe you said in answer to a question that you don’t remember whether you took one step or two steps out on the porch when the accident happened? A. That’s correct, I don’t remember.

All I know is, I stepped out and that is when it happened. Q. * * * Did you look at the floorboard before you stepped on it? A. I don’t normally look at it. Q. So you didn’t that time?

A. No. Q. That would be your best recollection? A. I know I was going out the same as I do any other time. * * * Q. So that your testimony and your recollection is that you didn’t look at the floor of the porch before you stepped on it? A. No, because I wasn’t accustomed to * * * Q. (By the Court) Now, I am not certain that I understand what you want the Court and the members of the jury to understand about what caused you to fall.

What caused you to fall on the occasion of your fall? A. The porch, the boards on the porch surface scattered. ⁸⁶ Q. (The Court) What do you mean scattered? A. They went out from under me.

They’d go up in the air. They’d go in every direction, the ones that were missing. Q. (The Court) Well, I am not sure what you mean when you say they scattered, they’d go in the air, and then I am not also very clear as to when this event occurred.

Can you give me clarification on those two things? A. Yes sir. On April 6th, the day that I fell, is when the boards scattered when I stepped out onto the porch and my feet went out from under me, and this was what I would call the cause of my fall.” Mrs. Ensor further testified that after the accident she saw approximately five of the tongue and groove boards lying on the ground near the porch, and Mr. Ortman came up to the house about an hour afterwards and also observed the floor boards scattered about. He told her not to touch anything and that he would make the repairs.

Eight days later he nailed the same boards back in place. Five pictures were taken of the back porch on the day after Ortman made the repairs, and these were introduced into evidence by the plaintiffs. Ortman sat with his counsel during the trial; however, he did not testify, nor did the defendant-appellee put on any witnesses. Judge Menchine instructed the jury as to contributory negligence as follows: “She [Mrs. Ensor] had stated that she did not look as she stepped from the house onto the porch.

A party cannot walk upon an obstruction which has been made by the fault of another and avail himself of it if he did not himself use common and ordinary caution. If you believe from the evidence that if she had looked she would have avoided the injury, she is contributorily negligent and cannot recover.” In an opinion ruling upon Ortman’s motion for judgment n.o.v., the trial judge had no difficulty finding evidence sufficient to support the jury’s determination of primary negligence ⁸⁷ on Ortman’s part, i.e., Ortman promised to make repairs; there was consideration for this promise in that the tenants agreed to remain on the property if the repairs were made; and the defendant negligently failed to perform that promise. As to contributory negligence, however, he opined that: “In the instant case there is no circumstance explaining or excusing the failure to look. The photos offered by the Plaintiffs themselves show that none of the boards of the porch floor broke at the time of the fall and there is not a scintilla of evidence that there was any defect in the joists upon which said boards rested.

Thus her fall can be explained upon no other hypothesis than that it was produced in whole or in part by her own negligence.” (Emphasis added.) In four earlier decisions this Court has had the opportunity to consider this issue of contributory negligence of a person injured by a defective condition in his own home where the owner of that residence had promised to repair such condition. See Farley v. Yerman, 231 Md. 444 , 190 A. 2d 773 ; McKenzie v. Egge, 207 Md. 1 , 113 A. 2d 95 ; Edelman v. Monouydas, 186 Md. 479 , 47 A. 2d 41 ; Robinson v. Heil, 128 Md. 645 , 98 Atl. 195 . See also 26 A.L.R. 2d, 468 , 568-70. Of the four, the Bdelman and McKenzie cases are factually closest to the instant case and for that reason are discussed at some length below.

In Bdelmcm the facts, germane to the issue here presented, were as follows: A tenant rented an apartment in the front room of which were two large and heavy windows extending almost down to the floor. One of the windows had been “nailed up” by the tenant’s daughter due to its broken sash cords. The remaining window had one of its cords broken and