State Ex Rel. Peach v. Cavey

Johnson, J., delivered the opinion of the Court. Warner Peach died December 4th, 1935, from injuries sustained two days earlier when he fell through an open trap-door forming part of the porch floor of the store premises of Edward F. Cavey and Priscilla M. Cavey, his wife, at Woodstock, Maryland. His surviving widow, Katherine V. Peach, as equitable plaintiff, brought suit against the Caveys under the provisions of article 67, section 1 et seq. of the Code, as amended by Laws 1929, ch. 570, sec. 3, to recover damages sustained by her because of his death. Her declaration alleges that the defendants operated and controlled a store and building at Woodstock, where they sold various articles of merchandise and invited the general public in said vicinity, including decedent, to visit the store for trade and business, and that on the evening of the date: in question, when daylight no longer existed, the decedent, while exercising due care as an invitee, attempted to enter said place of business, and in so doing walked upon the porch floor of the store at a place commonly used for its patrons, where he fell through an opening in the floor of said porch leading to the basement, and which opening the defendants negligently and carelessly suffered and permitted to remain uncovered without warning to him, and at a time when he had no reason to anticipate such an opening was not securely covered; that, as a result of said fall, her husband was thrown against the concrete steps leading to the basement of the premises and was seriously, painfully, and fatally injured, from which injuries his death resulted, all of which were due “solely and exclusively to the negligence and want of care on the part of the defendants” without negligence or want of care on the part of decedent, in consequence of which the equitable ⁴⁴⁷ plaintiff had been, by reason of said premature death and wrongful killing, deprived of large sums of money which the husband regularly gave her from his earnings.

The case was subsequently removed to the Circuit Court for Anne Arundel County, where it came on for trial, and, at the conclusion of the plaintiff’s case, the court granted prayers A, B, and D offered by the defendants. The A prayer was a demurrer to the evidence, the D prayer instructed the jury that under the pleadings in the case there was no evidence legally sufficient to enable the plaintiff to recover, as there was no evidence to show that the defendants knew the cellar door was opened at the time of the accident complained of, nor that they or either of them authorized or directed any one to leave the cellar door open, and their verdict must, therefore, be for the defendants. Their B prayer instructed the jury that, if they found defendants were guilty of negligence in allowing the cellar door to remain open, yet the plaintiff was not entitled to recover, if the jury further found that her decedent might by the exercise of reasonable care and prudence have avoided the consequence of the defendants’ negligence. It will thus be observed that there exists a conflict between prayers A and D which withdrew the case from the jury’s consideration and the B prayer which submitted the case to them.

However, since, notwithstanding this peculiar circumstance, it does appear that the jury found for the defendants under instructions A and D, we will consider the case in that light and ignore instruction B. The appeal is from the judgment entered upon the jury’s verdict. Counsel for appellant confined their argument to the exception relating to the rulings upon the prayers, hence the remaining exceptions will be treated as abandoned. The testimony of the plaintiff and witnesses in her behalf was sufficient to enable the jury) to find that appellees (defendants below) were the owners of property near Woodstock Station, Howard County, immediately east of a hard surface road leading from the station in ⁴⁴⁸ a southerly direction. Improvements upon the property consist of a two-story frame building used as a store with front porch extending practically its entire width, and attached to the store is the dwelling of defendants, but the front of this is to the south of the store front, leaving a paved opened space similar in appearance to the highway and extending from the south end of the store porch between the yard in front of the dwelling and the highway on the west.

Next to the highway there are three gasoline pumps, and approximately four or five feet to their east are certain oil pumps, drums, and a grease gun attachment. Between these and the gasoline pumps is an open space, which is used not only by the Caveys in