Wasserman v. Hutzler Brothers Co.

Horney, J., delivered the opinion of the Court. Four and one-half year old Debra Wasserman was painfully ³¹² injured when a thirty-eight pound fire extinguisher came in contact with and fractured the great toe on her right foot. The accident occurred while her mother was shopping in the downtown department store of Hutzler Brothers Company. Two actions were joined in one declaration filed in the Superior Court of Baltimore City—one on behalf of the child for damages for personal injuries and the other by her father for medical expenses and loss of services.

At the close of the evidence offered by the plaintiffs, the trial court granted the defendant’s motion for a directed verdict, which resulted in judgments for costs against the plaintiffs. The sole question raised on this appeal is whether there was sufficient evidence, or inferences from evidence, to submit the issue of negligence to the jury. The fire extinguisher, which normally hung on a bracket affixed to a post or pillar in the store—about waist high with the bottom approximately six to eight inches from the floor— was found on the floor in an upright position tilted against the child’s foot. But there was a complete absence of evidence to show where the extinguisher was before the injury was sustained, who placed it where it was found and how long it had been there.

The bracket was shown to be of the usual type and not defective. Under these circumstances, even if it is assumed that the presence of the extinguisher in an aisle indicated negligence on the part of someone, there is no evidence to support even an inference that such negligence was that of the defendant. Where an injury may have