Sezzin v. Stark

Collins, J., delivered the opinion of the Court. In May, 1944, the appellants, as hereinafter known, Samuel L. Sezzin and Blanche Sezzin, his wife, purchased the premises at 811 North Charles Street, Baltimore. The appellee, as hereinafter known, Rita M. Stark, rented from them on March 8, 1945, the second floor rear apartment. The rear of this property was divided into three furnished apartments, one on the first floor, one on the second floor, and one on the third floor.

These were known as the rear apartments as distinguished from those in front. On the south side and about midway of the house an air and light shaft ran from the ceiling of the first floor apartment up to and above the level of the roof, where it was capped with a skylight. The bottom of this shaft was located on • the same level with the ceiling of the first floor apartment and consisted of a ²⁴⁴ frame with three panes of glass. For the purpose of this case this frame with the three panes of glass will be known as the bottom of the shaft.

The frame was attached to the ceiling by hinges and could be opened and closed by pulling or releasing a cord. The dimensions of the shaft were five feet by two feet on the inside. This was the only means of getting air and light into these rear apartments. The rooms on the second and third floors directly above the first floor room, where the window frame was in the ceiling, each had a window opening into the shaft, the sills of which were three feet three inches above the floor.

From the sill of the window on the second floor, opening into the shaft, to the ceiling of the first floor room and the bottom of the shaft was a distance of four feet. Just outside of these windows on the second and third floors leading into the shaft, and directly under them, were clothes hampers fastened on the outside of the windows in the shaft by hooks. They were placed there by a former owner of the apartment house to provide a place for the tenants to store their soiled clothes. There was nothing under these hampers to catch any clothes that might fall out of them, except the bottom of the shaft.

There was no electric light in the airshaft. The only light entering it came from the skylight in the roof, or from electric lights in the two apartments which it served. Rita M. Stark, the appellee, was a married woman whose husband was temporarily absent with the Armed Forces of the United States. She went to this house on March 7, 1945, looking for a furnished apartment and was shown the second floor apartment by Mrs. Sezzin, one of the appellants.

She saw and was shown the location of the clothes hamper in the shaft on the outside of the window. Mrs. Sezzin did not call to the appellee’s attention the fact that there was a glass floor at the bottom of the shaft beneath the clothes hamper. There was no wire construction over the bottom of the shaft. On March 8, 1945, when appellee rented the apartment from Mrs. Sezzin she was given a list of the household ²⁴⁵ articles.

Among these was a long-handled wall brush and a few other things. Mrs. Stark could not find these at first but eventually found them “down in the left hand side of the shaft,” which she removed and did not replace there. The appellee had occasion to look into the shaft from time to time and saw at the bottom, a distance of only four feet, “what appeared to ‘be a solid floor.” She said it was quite dusty down there and she had never seen light coming through the bottom of the shaft. The janitor testified that he had never cleaned the bottom of the shaft since the appellants bought the apartment house in May, 1944.

A Mrs. Hipp, the tenant of the first floor apartment, testified that she got some light through the bottom of the shaft, “she didn’t get a bright light.” She said that enough light came through in the daytime so that she could get anything she wanted out of the room without turning on the electric light. She obtained no air through the shaft. She said that she had not opened the bottom of the shaft since the appellants had owned the property because soot came through. The third floor tenant, Miss Mauverine Miles, testified that in looking down the shaft from the third floor she could not tell what kind of material covered the bottom of the shaft.

On the evening of July 6, 1945, two girls, Miss Miles and a Miss Hilton, both of whom occupied the third floor apartment directly above that occupied by the appellee, knocked at appellee’s door and told her that in removing some clothes from their hamper they had dropped some articles down alongside of their clothes hamper and this clothing had fallen on the bottom of the shaft. They asked appellee if they could get these. The appellee and the two girls then went into the room leading into the shaft. They looked into the shaft which was dark.

However they could see the clothes, four feet away, lying at the bottom of the shaft. One article was on the right-hand side and the other was on the left-hand side. These articles of clothing had dropped at different times. The appellee volunteered to get down in the shaft and get ²⁴⁶ the clothing as she was cleaning her apartment and had on working clothes while the two girls were dressed in “good clothes.” The two girls told appellee not to do that because they did not want her doing things for them.

Miss Miles testified that Miss Hilton told the appellee, “ ‘I thing it might be glass,’ or something to that effect, her exact words I am not sure.” Miss Hilton, being out of the State, did not testify at the trial. The appellee testified that as she was getting in the shaft Miss Hilton said to her, “Be careful, there may be some glass down there.” Appellee said that the reason .she went in the shaft was “because to my mind there was a solid floor and it had never given the appearance of being anything else. So they dropped clothing and I did not see any reason why I should not go down and recover their clothing.” Appellee sat on the window sill, turned her feet around and let herself down into the shaft. She picked up the article of clothing on the right-hand side and handed it to the girls, who then called her attention to the other article -over on the left.

She moved one foot to get over to the left side and then the bottom of the shaft went through. She landed on the floor of the first floor apartment where it was dark until the light was turned on. The two girls came down from the second floor apartment. Mrs. Hipp heard the noise and she and her husband went into the room and he turned on the light and they found the appellee sitting on the floor.

Mrs. Hipp testified-that the appellee then said that she did not know why she did such a silly thing and that she was not in the habit of doing things like that. Appellee denied she made this statement. The appellee was taken to the hospital in Baltimore where it was found that in addition to other injuries her right leg was fractured. Her left foot was operated on.

She remained in the hospital in Baltimore until July 27, 1945, when she returned to her home in Miami, Florida. At the time of the accident appellee was employed as a stenographer at wages of $45 a week. She did not return to work until-early in January, 1946. ²⁴⁷ Suit was entered by appellee against appellants on November 25, 1945, which resulted in a verdict by a jury for the appellee in the amount of $1,000. From the judgment on that verdict the appellants appeal.

The appellants assign as error the failure of the trial court to grant their C and D prayers. These prayers in effect asked the Court to instruct the jury, (1) that, under the evidence, the appellants were not guilty of primary negligence directly contributing to the accident, and (2) if they were, the facts showed as a matter of law that appellee was also guilty of negligence directly contributing thereto. This Court is not called upon to decide whether the appellants were guilty (1) of primary negligence or (2) whether the appellee was guilty of contributory negligence. It is simply our duty to decide whether there was evidence legally sufficient to give the jury the opportunity to decide these questions upon the facts presented and the material inferences of facts therefrom.

Summarizing, there was evidence that the landlord provided the hampers outside of the windows in the shaft for the soiled clothes of the tenants. There was no screen or other device provided to catch any articles which might fall out of the hampers other than the bottom of the shaft. The bottom of the shaft had not been cleaned for at least about fourteen months. The janitor was never instructed by the appellants to clean this nor was appellee told by the appellants that the bottom of the shaft was a glass floor.

The janitor had cleaned the shaft for a former owner. The bottom of the shaft had never been opened since appellee was a tenant there. The appellee said that the bottom of the shaft, four feet away, appeared to her to be solid. She had only looked down in the shaft.

She had never been in the first floor apartment. Miss Miles, the third floor tenant, said that in looking down the shaft, she could not tell what material covered the bottom. It was natural to suppose that clothing might fall out of the hampers or the windows to the bottom of the shaft. No method was provided ²⁴⁸ by the landlord to retrieve these.

The appellee found some of the furnishings of the apartment, supplied by the landlord, stored in the shaft when she moved in. From this she might have inferred that the bottom was solid and would hold her. The recbrd does not show the size of the appellee but it was admitted in the argument that she was a small woman. This Court is of opinion that there was sufficient evidence of primary negligence on the part of the appellants to submit that question to the jury.

We are further of opinion that .there was not sufficient evidence of contributory negligence on the part of the appellee to rule as a matter of law that the case should be withdrawn from the jury. This is not a case where the tenant rented the whole premises. In the case of Smith v. State, to Use of Walsh, 92 Md. 518 , 48 A. 92 , 51 L. R. A. 772, the tenant rented the whole house from the landlord, Smith. The child of a sub-tenant apparently fell through missing banisters on the porch and was killed.

This Court held in that case that the landlord did not warrant the condition of the premises. As. the tenant could inspect it the landlord was not answerable unless there was misrepresentation, active concealment, or total inability on the tenant’s part to discover the defects before entering. It is said in Tiffany on Real Property, Volume 1, Page 102, “Since the tenant is bound to inspect beforehand, and is subject to the rule of caveat emptor, and the landlord owes no duty to repair, the latter is, in general, not liable for injuries to the tenant or his property resulting from the construction or condition of the demised premises. This rule is, however, subject to the exception referred to above, in regard to hidden defects existing at the time of the lease, of which the lessor, knowing thereof, is bound to inform the lessee.” In Gray v. Elgutter, 1926, 5 La.

App. 315 , the plaintiff was held a trespasser when, having been employed by two tenants to clean their apartments, she entered a vacant apartment that led to a skylight and she fell through the glass. In the case of Culbreath v. M. Kutz Co., 1927, ²⁴⁹ 37 Ga. App. 425 , 140 S. E. 419 , a window washer fell to the street when a window he was washing and using for support broke loose. The Court in sustaining demurrers to the petition held that the defendant was under no duty to construct or maintain windows in a safe condition for any but ordinary uses; that is, to admit air and light.

Further that the danger was so obvious that a person of ordinary prudence would not have subjected himself thereto. In the case of Owners’ Realty Co. v. Richardson, 158 Md. 367 , 148 A. 543 , the plaintiff was injured in a self-operated elevator while visiting her employer, one of the tenants. This Court held in that case that the landlord was engaged in the carriage of its tenants and their servants and visitors by means of an automatic elevator, which was operated by those using it without any assistance, direction, or supervision of the landlord. This Court said further in that case 158 Md. at page 371 , 148 A. at page 545 , “It was an economical method to cast the burden of its operation upon those having occasion to go to and from the several apartments of the six-storied building, but the knowledge of the defendant that it would be run by a number of persons, who would represent a wide range of age, experience, intelligence, and capacity, cast upon the defendant all the more care in the selection and maintenance of the mechanical device which was adopted for this general service.

The rule approved by this court is that the landlord engaged in transporting passengers by elevators must exercise great care not only in their operation but in providing safe and suitable equipment. It is a rule which has its sanction in sound public policy, which exacts a high degree of care where security of person and life is frequently involved, under circumstances in which the carrier is in control of the movement or of the equipment.” Likewise in the instant case it was the duty of the landlord to furnish light and air to the apartment of the tenant. This shaft was an economical method of doing so, and in maintaining this shaft with windows opening into it ²⁵⁰ and with a bottom which appeared to the tenant to be solid, though made of glass, the landlord, being in control of the elevator shaft, was charged with a high degree of care for the security of the persons getting light and air from the shaft. It is said iñ Restatement on Torts, Negligence, Section 360, “Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use”: “A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.” (Italics ours.) The case of Bernstein v. Karr, 22 N. J. Misc. 1, 34 A. 2d 651 , also follows this doctrine where it is said, 34 A. 2d at page 653 , “This doctrine is set forth in Barthelmess v. Bergamo, supra, 103 N. J. L. [397], at page 398, 135 A. at page 794, thus: ‘The sole departure from the fundamental rules, except where the locus in quo was in essence a nuisance, has been necessitated by the construction of tenement or apartment houses, intended for the habitation of many tenants, in which situations differing entirely from any comprehended by the rural conditions of habitations at the common law, the courts have found it necessary to recognize the novel housing requisite incident to modem life, by treating hallways and stairs as common ways or appurtenances, kept and maintained by the landlord, for the purpose of affording reasonable entrances and exits to and from the demised premises; and for a failure to reasonably maintain which, in the event of damage to occupants and others lawfully using the premises, the landlord has by the general trend of authority been made liable.’” (Italics supplied here.) It is further said at Section 360, supra paragraph (c) : ²⁵¹ “* * * The rule stated in this Section applies not only to the hall, stairs, elevators, and other approaches to the part of the land leased to the lessee as a flat, office or room in a tenement or boarding house, but also to such other parts of the land or building to the use of which by express or implied terms of the lease the lessee is entitled, usually in common with other lessees, such as a bathroom in a boarding house and the roof or yard of a tenement building or apartment house.” In Dobbie v. Pacific Gas & Electric Co., 1928, 95 Cal.

App. 781 , 273 P. 630 , the plaintiff, a sheet metal worker, sued for damages for injuries sustained while working for an independent contractor on the roof of defendant’s gas generator plant when he fell through the skylight covered with several inches of soot and cinders and discharged by gas generators. It was alleged that the skylight was