Morgenstern v. Sheer

Thomas, J., delivered the opinion of the Court. The appeal in this case is from a judgment recovered by the appellee against the appellants in the Baltimore City 'Court for injuries sustained in falling down an elevator shaft in a building belonging to the appellants. The building is located on the north side of Redwood Street, between Eutaw and Paca Streets, and is known as Nos. 404 and 406 West Redwood Street. It was owned by the appellants, Louis Horgenstern and Nathan Horgenstern, who were engaged in the manufacture of pants under the firm name of J. Horgenstern & Sons, and who occupied the third floor.

The other floors of the building were leased bv the appellants to various tenants, including Gladstone & Kushner, who were also engaged in making pants, and who occupied the fourth floor. In approaching the building from Eutaw Street and going west on the north side of Redwood Street, you come first to a small door, about three feet wide, which’ is reached by two steps up from the pavement and leads to a stairway running to the upper floors. A short distance from, and about two feet west of, the. first door, there is a large double door, about five feet wide. This double door opens into a hallway, about on a level with the pavement, which extends north into the building about twelve feet and then turns at right angles to the left or west, and runs a distance of about twelve feet to a .partition :at the end of. the hall.

When you enter the build ²¹¹ ing through the double door, the left side of the hallway is a partition “of a wood slat construction, open, upright slats, about three inches wide, with a space of an inch and a half between them.” At the end of this partition there is another partition of like construction which runs west at right angles with the first partition for a distance of about six feet to the elevator shaft, which is five feet nine inches wide, and extends to the west end of the hall. On 'the day before the accident, which occurred on the 4th of April, 1922, Mr. Gladstone, of Gladstone & Kushner, asked the plaintiff to work for them and to come to see them at their place of business, and told him that their address was Morgenstern & Sons’ building, 404 West Redwood Street. About 12 o’clock the following day the plaintiff, on his way to see Mr. Gladstone, went down Eutaw Street to Redwood Street, and then west on Redwood Street until he came to the building. He saw the name of J. Morgenstern & Sons across the front of the building, and then looked for and saw Mo. 404 on the building.

He observed the small door, but as it was closed he looked for another door and saw the double door, both doors of which were open, and entered the building through that entrance. His description of what occurred after ho entered the door is as follows: “As soon as I went in there I saw a partition in front, facing me as I went in. 1 was walking north to the partition, then on the left side there was another partition. I don’t know whether it was a partition or wall there; it reached to the ceiling. You see I did not look at that.

I just walked and walked to the end of the partition on my left side. * * * I was looking for the step or an elevator. So when I came to the end of the partition I made a foot or two step and down I went with my left foot right in there; I could not balance, you know, it unbalanced me over, and I could not grab hold of something, and I fell right in. There was no bar or door to keep me, nothing at all. Nothing to grab hold of. * * * It was light from' the outside. * * * I could not get north because the partition was facing me, so I turned to my left to look for a step or elevator, and as soon as I stepped a step' or two then ²¹² I fell right in. * * * When I made the turn it was light, but it was not as light as it was when I first came where the doors were wide open.

It was light, but it was not as much as it was as soon as I eame in. You could see about ten feet ahead of 3-on there. * * * I could see about ten or twelve feet ahead of me.” He further testified that there was no electric light in front of or in the elevator, and that .there was no bar, or gate, or door or chain at'the opening, and that if there had been a chain there he would have grabbed hold of it; that while he was lying in the cellar he looked up* and saw the elevator up at the third or fourth floor. On cross-examination he testified that he did not see any signs at the smaller door; that he looked but did not see any; that when he looked for No. 404, “I saw the wide-open door. When I came to the wide-open door I looked up, and there was no sign”; that he did not see on the door a sign which stated, “positively no admission,” and did not see inside a sign which stated “freight entrance only”; that when he entered he continued to walk until he got to the end of the partition on his left, and then he made a turn to the left, and that he could then see ten or twelve feet ahead of him.

Police Officer Douglas testified that he was connected with the Western Police Station, and that on April 4th he was sent to Morgenstem & Sons, 404 and 406 West Redwood Street, to investigate the accident; that he reached there between 5 and 6 o’clock that afternoon; that he went up' Eutaw Street and turned west on the north side of Redwood Street; that when he got to the building he found both of the double doors wide open and entered the building through that entrance because he took that to be the main entrance; that when he entered the hallway through that entrance he flashed his light and walked north about twelve feet to a partition and then turned to his left and walked about five feet further, when he saw the elevator shaft on his left; that he examined the elevator shaft; that he looked down the elevator shaft and saw a rusty chain hanging down; that he could not tell whether it was a “whole chain or a half chain, but there was no chain across the shaft; the chain was hanging down loosely, and there was ²¹³ nothing' across the opening to keep¡ anybody from falling in at all”; that he wanted to talk to Mr. Morgenstern, so he walked out on the street again and looked for some other door to the building; that he then noticed a small door, which was closed, and opened it and walked upstairs to the third floor; that some tailor told him that Mr. Morgenstern was-out and that he did not know anything about the accident, and that he, witness, then went down to the second floor, which was occupied by some publishing company; that he met a Mr. Gladstone and asked him if he knew anything about the accident, and that he told him that it happened about 11 o-’clock in the morning, and took him down in the elevator to the first floor; that when he got down there he flashed his light again, as there was no light in the building, and found that there was no “safety door” to the elevator shaft, and no bar or anything across it to prevent a stranger from falling in, and that he then went back to his district and made hi-s report. On cross-examination he said that when he went to the building he did not see the small door that he afterwards went in, but saw the main door and went in that way; that he did not see any signs when he went in, and that after he went in the building through the main entrance and did not find any way to go upstairs, he went out on the street again. Dr. Ohideckel testified that when he went to the building some time after the accident to see Mr. Morgenstern, he went in through the large door mentioned by the plaintiff, thinking it was the main entrance; and that while looking for steps to go to the upper floors he discovered the elevator shaft, which was open, by getting one foot in it, and that he then struck a match and found the stairway in another part of the building near the elevator shaft and went upstairs. On cross-examination he said: “When I went in the front entrance there was plenty of light in there.

As 1 was advancing in the hall it was getting darker, and all of a sudden I found myself in front of the (devator shaft. * * * T only know that one of my feet felt tliat F had no bottom under me, and all of a sudden I discovered that I was going into an elevator shaft”; that he- ²¹⁴ grabbed a chain that was hanging down on the side and caught himself, and that when he went in the building he did not see any warning signs. Samuel Becker, another witness fox the plaintiff, testified that the night before the accident Mr. Gladstone came to see him and asked him to work for him; that Mr. Gladstone told him .to come to 404 West Redwood Street, fourth floor, over Morgenstern & Sons, and that when he went there the next day about 12 o’clock he saw Morgenstern & Sons across the front of the building and went in the building through the wide entrance (the one through Which the plaintiff entered), and walked in the hall and turned to the west, but as he did not see any stairs or elevator, he went out of the building and went in the other door and upstairs; that when you enter the building through the wide or main entrance the hall is very light from the light outside, and that when you turn to the left there is less light; that he can read signs, and that he looked for them, and that if there had been any warning signs he would not have gone in through that entrance. On cross-examination he testified that when he turned to the left in the hall it was light enough for him to • see where he was going, but that he did not see the elevator shaft because he only stayed in there long enough to discover that there were no steps in there leading to the upper floors, of the building. Joseph Jollomb, a tailor, who after the accident went to work for Mr. Gladstone in the place of the plaintiff, testified that when he went there to work some days later, knowing of the accident, he entered the building through the “narrow entrance,” but that after he had been working there he and several others went down to the place of the accident and saw that there was a part of a broken, rusty chain hanging there; that the chain would not reach across the opening of the elevator shaft, and that there were no doors to the opening.

Mack Dubinsky, another witness for the plaintiff, testified that when he went to the building about three weeks after the accident, to secure work with Gladstone & Kuahner, he entered the building-through the same entrance the plaintiff used, and that he did not see any signs warning persons not to use that en ²¹⁵ trance, and that there were no such signs there when he went there. It was admitted that the defendants owned the building’ and the elevator; that they and the other occupants of the building used the elevator, and that the tenants of the defendants rented from the defendants with the right to use the elevator. The plaintiff then offered in evidence a volume of City Ordinances and Resolutions passed in 1908 and 1909, and read to the jury paragraphs 26 and 45 of Ordinance 155, as follows: “Par. 26. Freight enclosure doors may be made to hinge or slide up and down, or have semi-automatic gates not less than five feet high; but where hinged gates are used there must be also a hinged guard rail inside next to elevator shaft. “Par. 45.

In all cases the guards or gates of any elevator shall be kept closed when the elevator is not in actual use, under penalty of $25.00 fine.” The defendants offered evidence tending to show that the double door of the building, referred to in the evidence, was used as a freight entrance, and that on April 4th there was a sign on the outside of the westernmost of the two doors to the freight entrance which stated, “No admission. This means you”; that these doors opened “inwardly,” and the entrance leads to the elevator; that there was also a sign on the inside, on the west wall or partition, about five feet from the door, which stated, “This, entrance for freight only. No passengers allowed, J. Morgenstern & Sons,” and that these signs were made by the witness, Rudolph Ott, after he went to work for Morgenstern & Sons; that they “were marked with a stencil brush,” and placed by him about, three years before the accident; that the elevator was used for freight by the defendants, and other occupants of the building; that there was no one employed or designated to operate the elevator, and that so far as the witness knew it was never used “for passengers.” On cross-examination the witness testified that he was employed by Morgenstern & Sons, who occupied the third floor, as shipping and receiving clerk, and that ²¹⁶ when he wanted the elevator he opened a little door to the side of the elevator shaft, where the ropes that operate the elevator are located, and holloed, and if he received no answer he pulled “the thing” that brought the elevator up; that Horn the third floor he could look down the elevator shaft to the first floor; that he generally holloed two or three times; that when the elevator is brought up it leaves an opening below to the elevator shaft, which had a chain across it; that the chain was made in two sections, which were linked together by a snapper hook; that when the elevator is brought up by a person on the third floor he cannot link the chains together, and if they are not linked when the elevator is raised to the upper floor they remain that way. On redirect examination he said that there was a chain at the elevator shaft on the 4th of April, 1922.

The record contains six exceptions, the first five of which are to rulings of the court below on the evidence, and the sixth is to the granting of the plaintiff’s prayer and to the rejection of certain of the defendants’ prayers. The plaintiff’s prayer is the usual damage prayer, and no objection to its form was urged in this court. The defendants offered eleven prayers, the third, sixth and eighth of which were granted and the others rejected. Their A., B., and first prayers asked for a directed verdict in favor of the defendants, (1) because of the want of legally sufficient evidence to entitle the plaintiff to recover; (2) because the plaintiff was guilty of contributory negligence, and (3) because the only invitation to the plaintiff to enter the building was an invitation to enter by the “eastermost entrance to said building.” In support of A. prayer the appellants contend that “the-posting of the two signs at the Height entrance, warning all who attempted to enter there that the entrance was for freight only, was sufficient compliance by the appellants with the duty imposed upon them,” and in