Snider v. Senneville

Levine, J., delivered the opinion of the Court. This appeal is from a judgment of the Circuit Court for Montgomery County (Moorman, J.) upon a jury verdict for appellee (defendant below) on appellant’s claim arising from personal injuries. The injuries were sustained in appellant’s apartment when she tripped over a tool box belonging to appellee. The latter, a furniture repairman, had arrived to mend certain furniture which had been recently damaged, and brought with him a tool box weighing thirty-five or forty pounds which, according to appellant, he placed on the living room floor.

Appellee, on the other hand, stated that he placed it near the dining room table. Although appellant had noticed the metal box when appellee en ⁵⁵⁴ tered, she testified she did not observe where it was placed until after her fall. The lighting was described as good. In the course of the inspection conducted by appellee, it became necessary for a serving table in the dining room to be cleared in order for appellee to make some repairs.

From the serving table, he picked up a tea service and walked towards the living room followed by appellant who was carrying a silver tray of approximately eighteen inches in width. As they proceeded in this fashion, she fell over the tool box. Appellant’s explanation for failing to notice the box appears in the following excerpts from her testimony: “Q. How were you carrying that tray? A. I was carrying it in both hands. “Q. Approximately waist high?

A. Just about like that; yes. * * * “Q. Now, when you came around the dining room table with the tray in your hands, did you know where the tool chest was? A. No. “Q. Were you looking for it? A. No. * * * “Q.....To your knowledge, Mrs. Snider, was there anything that prevented you from seeing that box ? A. The tray I was holding is one thing that was keeping me from seeing it. “Q. Was there anything else?

A. Only Mr. Sennerville [sic] walking ahead of me. “Q. Did that interfere with your view of the box or weren’t you looking? A. I could not see the box. I did not know it was there. I am the only one living in that house, sir. “Q. Is it correct to say that you did not look in the area of the floor as you walked ?

A. I did not look down at the floor. That floor is always clear. I did not expect it to be there.” ⁵⁵⁵ This appeal centers upon two aspects of the trial judge’s charge to the jury. The first deals with the following portion of the instructions which appellant contends should not have been given, and to which she noted an exception: “I instruct you also that it is the law that failure of a person to keep a proper lookout is negligence, and the duty of maintaining a proper lookout requires not only the physical act of looking with reasonable care but reasonably prudent action to avoid the danger which a proper lookout would disclose. “If a person looks and does not see what a reasonably prudent person would have seen under the circumstances in time to take the necessary precautions to avoid danger, that person is just as guilty of negligence as if he fails to maintain a proper lookout.” (emphasis added) After Judge Moorman completed his instructions to the jury and counsel were called to the bench to present their objections, counsel for appellant, after noting his exceptions to what we have just quoted, requested “that the jury be instructed that there is no duty to anticipate that another person will do something negligently.” The refusal to grant that request gives rise to the second assignment of error.

In challenging the trial court’s instruction to the jury “that failure ... to keep a proper lookout is negligence,” appellant makes the rather convincing argument that this amounted to the direction of a verdict since, as we have noted, she readily conceded that she did not look. The question thus posited is whether, under the circumstances, she was contributorily negligent as a matter of law in failing to look at the floor area where the tool box lay. We think she was not. In contending that she was not under an absolute duty to look, appellant likens her situation at the time of the ⁵⁵⁶ incident to that of the store customer in Hutzler Bros. v. Taylor, 247 Md. 228 , 230 A. 2d 663 (1967), where Judge McWilliams, writing for this Court, distinguished that case from a collection of authorities which, in part, are relied upon here by appellee.

The import of our decision in Hutzler is that one may be injured while walking in a familiar area as a result of a defect which, although it may have existed for some time, might not previously have been apparent to him; and yet, not be deemed contributorily negligent as a matter of law. This is readily distinguishable from the factual situation in Tyler v. Martin’s Dairy, Inc., 227 Md. 189 , 175 A. 2d 587 (1961), cited by