Pinkerton v. Slocomb

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment obtained by the appellee against the appellant for damages for personal injuries sustained by her, by reason of the alleged defective condition of a stairway leading to the .back yard of the premises where she then lived. The ease is peculiar in several respects. The declaration alleges that the defendant is owner, individually and as executor of Eleanor Lucinda Pinkerton, deceased, of’ the leasehold property known as No. 327 East Twenty-fifth street, in Baltimore City, and as such rented the property to the- plaintiff.

The testimony shows that it was fee simple property, and that although the appellant is the only heir of Mrs. Pinkerton and devisee of the property in question) he had filed a caveat to the will and was administrator pendente lite of the estate. The record does not include the will or the caveat, or explain why the latter was filed, but it does show that the appellant verbally rented the property either to the appellee or her husband, or to both. If it was material to determine to whom it was rented, it would be difficult to sustain the allegation in the narr. that it was rented to the ⁶⁶⁷ appellee, although she and her husband were both present at the time of the renting. But as the liability of a landlord is practically the same to a member of the family of a tenant as to the tenant himself for personal injuries sustained by reason of a defective condition of the premises, we will determine the case regardless of that allegation in the narr.

There are twenty-two bills of exception relating to the admissibility of evidence, and another which embraces three prayers of the plaintiff and fifteen offered by the defendant (including some which sought to take the case from the jury), besides a number of special exceptions to the plaintiff’s prayers, but under our view of the case it will not be necessary to discuss the exceptions or the prayers in detail. The narr. alleges that the defendant agreed to put the property in repair, and keep it in repair, during the tenancy, and the other part of it most material to our discussion is as follows: “That said stairway broke and gave way because of the defective condition thereof. That prior to the happening of the injury herein mentioned, this • plaintiff had complained to the defendant of the condition of the said stairway and insisted as a condition of the continuance of the tenancy that the same be repaired, and said defendant agreed to make the necessary repairs thereto. That thereafter, but prior to the happening of this accident, the defendant caused certain repairs to be made to said stairway, but the said repairs were improperly, insufficiently and negligently made, and certain defective timbers were permitted to be and remain in said stairway by said defendant.

That by reason of the aforesaid attempted repairs this plaintiff was thereby induced to believe in the safety of said stairway and continued as a tenant of the defendant in said property. The said defective condition, though unknown to this plaintiff, was well known to the defendant, and that said injuries to this plaintiff were caused solely by the fault, negligence, want of care and wrongful act of the defendant.” ⁶⁶⁸ In Thompson vs. Clemens, 96 Md. 196 , after referring to authorities, we said: “We have no doubt, however, that no action, either in contract or in tort, by a tenant, or one of his family against a landlord to recover damages for personal injuries should be sustained merely because the latter has been guilty of a breach of contract to make necessary repairs in the premises demised.’.’ Again we there said: “So it seems to us that the correct rule in a case such as the one under consideration is that the mere failure of the landlord to make repairs which he had agreed to make can not make him responsible to the tenant, or a member of his family, for damages for personal injuries sustained by reason of the defective condition of the premises, whether such sui1 be in assumpsit or in case, but in order to recover such damages there must be shown some clear act of negligence or misfeasance on the part of the landlord beyond the mere breach of contract.” That opinion concluded by saying: “So, although we are of opinion that a landlord, under contract to repair, may under some circumstances be liable for damages for personal injuries by reason of a negligent failure to make repairs, his negligence must be clearly established as the foundation for such liability,” and we went on to say that there was no such legally sufficient evidence of it as would have justified the Court below in submitting the case to the jury. We are therefore called upon to examine the evidence:, and determine whether it was legally sufficient to authorize the submission of the case to the jury. The appellee and her family had occupied the premises from the middle of August, 1910, to the time of the accident, which she testified happened February 1st, 1913.

The appellant rented the house to the husband of the appellee, as the appellant claims, or to both, as their testimony would seem to show, at $10.00 per month, and the appellant was to have a room there and two meals a day, for which he was to allow $6.00 a week. He was in the employ of publishers of city directories, was absent ⁶⁶⁹ from Baltimore quite frequently and when there spent the day away from the house in which he lived. The appellee said the house “needed some repairs and Mr. Pinkerton promised to put it in repair and keep up the repairs for the consideration of $40.00 per month, and the payments were to be made as I have stated, and he did some of the repairs before we moved in and he did the repairs from time to time as they were needed.” There was a back porch and eight or nine steps leading down to the yard, with a railing-on each side. There were posts at the bottom of the railings.

The appellee testified that on February 1st, 1913, about seven o’clock in the evening, she started down those steps “when the fourth step broke at the edge, and it broke with my foot and when I tried to catch hold of the railing the railing went off.'’ When asked by the Court, “Do you say the fourth step? she replied: “Yes, sir, the fourth step from the bottom, the edge went off that and my foot was on that and that threw me and I grabbed at the railing and that went off and I was thrown to the yard on top of that post.” The post itself and pictures of it and the broken stairway were admitted in evidence against the objection of the defendant, but, although exceptions were taken, we will not stop to pass on them, and will for the purpose of this discussion assume the action of the Court in admitting them to have been proper, as apparently the bottom of the right-hand post, the one which broke'off, was in bad condition at the time of the accident, although there was nothing on the surface to indicate it. The appellee and her husband testified that sometime during the summer before the accident those steps were repaired. Ben S. Johnson, a colored man who did the repairing, said that he went to that house on August 26th, 1912, and did four days’ work, including, during that time, the repairs on the steps and other work. In speaking of those repairs, the appellee said: “The colored man Ben came and repaired the steps.

To repair the steps he put in two new bottom steps and to put those in he had to remove the posts, and of course because of the two steps being off, ⁶⁷⁰ and the posts being off, I had to go to the yard through the basement kitchen, while Ben was doing the repairing.” She ■ was asked if the post was off, and replied, “Yes, the post had to come off to put in the two new bottom steps, and the posts were put back, and it looked then in good order. * * v After Ben had repaired the steps he left and they looked to he all right. The posts were put back, and two new steps put there, and I used them until February 1, 1913.” The husband of the appellee said that when they were repaired he was back and forth to and from his work, and was home every evening; that he did not see the men working on them, but he saw the evidence of their having been repaired. A part of his testimony is as follows: “The Court: State when the repairs were made? A. Sometime in the summer previous, I think; I don’t know the date.

Mr. Col-ton : After those repairs were made in the summer, if it was in the summer, did you make any further complaints, if any, to Mr. Pinkerton about the condition of the steps? A. Not after they were repaired. Q. There was nothing to indicate there was anything to be done there, was there? A. No, sir; apparently they were all r-ight.

Q. And the first intimation that you had that they were not all right was when your wife fell, isn’t that true ? A. Yes. Q. Now, when did your wife fall ? A. February 1, 1913.” The defendant said he thought the repairs were made in October; that he had Ben Johnson make the repairs but he was not at home during the day.

This appears in his testimony: “Tell his Honor and the gentlemen of the jury whether at that time there was anything to indicate to you that • (there) was anything more necessary to be done than was done? A. No; I employed the carpenter and I left it to his judgment. He is a carpenter and built houses and had big contracts if he is a colored man. Q. Was there anything that appeared to you which you saw that was required to be done that was not done?

A. No, sir; not at all. Q. At the time of the alleged happening of the accident in this case did you or not know, or was there anything to lead you to ⁶⁷¹ believe, that those steps were out of repair—at that time did you know or was there anything to lead you to believe it? A. No.” He said he was not there through the day, that he had