Western Maryland Railway Co. v. Griffis

Singley, J:, delivered the opinion of the Court. SS Alcoa Polaris, owned by the Alcoa Steamship Company, arrived in Baltimore on Wednesday, 2 March 1960 and was ⁶⁴⁵ docked at Pier 9 at the Port Covington yards 1 of Western Alary land Railway Company (Western Maryland). Between 11 P.M. on Wednesday and 1 P.M. on Thursday, 3 Alarch, 10 inches of snow had fallen. One-tenth of an inch fell early on Friday, 4- March From 1 A.M. on Thursday until 8 A.M. on Saturday, 5 March, the temperature was never higher than 26º and had been as low as 18°.

For some eight years, Griffis, plaintiff below and appellee here, had been an oiler on the SS Alcoa Polaris, which had been calling at Baltimore once a month for two years, always docking at Pier 9. Griffis remained aboard ship until 8 A.M. on Saturday, 5 March, at which time he left the ship with the intention of picking up his-vacation paycheck at the union hall and doing some shopping. He followed the route which he usually took when he went ashore ‘'nearly every trip” when the ship was in Baltimore: he left by a midship gangway, turned to his right to walk along an apron to the end of the pier, crossed the pier, and started walking on the road which led to the McComas Street entrance of the terminal. It was at this point that Griffis slipped and fell, breaking his hi]i and wrist.

Griffis’ suit against Western Maryland was tried before the Superior Court of Baltimore City (Harris, J.) and a jury. From a judgment entered on a jury verdict in Griffis’ favor, Western Alaryland has appealed, assigning as the basis for its appeal five rulings on evidential matters made by the triad court. We shall consider these in order, referring in each instance to such additional testimony as may be pertinent to the issue. i Was there evidence in the case legally sufficient to entitle the plaintiff to a verdict against the defendant? Western Maryland argues that the trial court erred in refusing to grant its motions for a directed verdict at the end of the plaintiff’s case, and at the end of the entire case, and its motion ⁶⁴⁶ for a judgment non obstante veredicto, all grounded on the reasons: That there was no evidence legally sufficient to entitle Griffis to a verdict; That the evidence failed to show any duty owed Griffis or any breach of duty by Western Maryland; That the evidence failed to show that Western Maryland had any actual or constructive notice of the alleged hazardous condition; and, That the evidence failed to show any primary negligence on the part of Western Maryland.

The duty owed by a landowner to business invitees, a class of which Western Maryland concedes that Griffis is a member, has been clearly defined in several recent cases. Honolulu Ltd. v. Cain, 244 Md. 590 , 224 A. 2d 433 (1966) involved a suit for damages for injuries sustained by a customer who slipped on ice which had formed at a shopping center parking lot. In holding that there was sufficient evidence to go to the jury on the question of primary negligence, we said: “The duty of an occupant of land toward his business ‘invitee’ rested, in its inception, upon an implied representation of safety, ‘a holding out of the premises as suitable for the purpose for which the visitor came * * *’, Prosser, Business Visitors and Invitees, Selected Topics of the Law of Torts 243, 261 (1953). The word ‘invitee’ itself, conveys the idea that the place is held out to the visitor as prepared for his reception.

The occupant does not, of course, become an insurer of the safety of those who accept his invitation. But when the public is led to believe that premises have been offered for its entry, the law is clear that the occupant assumes a duty of reasonable care to see that the place is safe for the purpose. The duty extends to those who are injured when they enter in response to the invitation. * =¡= * “The Restatement of the Law of Torts, Second [1965] Sec. 343, sets forth the standards governing ⁶⁴⁷ the relationship of landowner and business invitee with respect to a hazardous condition. The landowner is subject to liability for harm caused by a natural or artificial condition on his land if (a) he knows or by the exercise of reasonable care could discover the condition, (b) he should expect that invitees will not discover the danger, or will fail to protect themselves against it, (c) he invites entry upon the land without (1) making the condition safe, or (2) giving a warning.

These principles have been approved many times by this Court. Yaniger v. Calvert Bldg. & Const. Co., 183 Md. 285, 289 , 37 A. 2d 263, 265 (1944); Evans v. Hot Shoppes, Inc., 223 Md. 235, 239 , 164 A. 2d 273, 276 (1960); Morrison v. Suburban Trust Co., 213 Md. 64 , 130 A. 2d 915 (1957); Glaze v. Benson, 205 Md. 26 , 106 A. 2d 124 (1954).” 244 Md. at 595 -96 Honolulu has been cited with approval or followed in a series of snow and ice cases, including Abraham v. Moler, 253 Md. 215 , 252 A. 2d 68 (1969); Gast, Inc. v. Kitchner, 247 Md. 677 , 234 A. 2d 127 (1967); Raff v. Acme Markets, Inc., 247 Md. 591, 233 A. 2d 786 (1967); New Highland Recreation, Inc. v. Fries, 246 Md. 597 , 229 A. 2d 89 (1967); Dorsch v. S. S. Kresge Co., 245 Md. 697 , 226 A. 2d 899 (1967); Weisner v. Mayor & Council of Rockville, 245 Md. 225 , 225 A. 2d 648 (1967). It is interesting to note that Judge Harris, quite properly we think, incorporated the rule of Restatement, Torts 2d (1965), § 343 in his charge to the jury.

There was evidence from which the jury could have found that Western Maryland expected pedestrians to use the road where Griffis fell, particularly since no pedestrian walkway was provided; that 21 men had spent 2721/2 man hours cleaning snow and salting ramps, aprons, downspouts and streets on Piers 7, 8, and 9 between 7 A.M. and 10 P.M. on Thursday, 3 March; and that no cleaning or salting of streets had been done between 10 P.M. on Thursday and 8 A.M. on Saturday, when Griffis fell, although there had been high winds, freezing temperatures, and a small amount of additional snowfall. There was also testimony ⁶⁴⁸ that the área where Griffis fell was covered with ice, although concealed by a light layer óf snow, and that all of the roads in the terminal were free of ice and snow except for the particular section where Griffis fell. There was evidence to support a jury finding that Griffis saw the snow on the road, but did not see the ice'which caused him to fall and had no reason to suspect that it was there. Whether Western Maryland knew or should have known of the dangerous condition was a jury question.

Blanco v. J. C. Penney Co., 251 Md. 707, 714 , 248 A. 2d 645 (1968); Stein v. Overlook Joint Venture, 246 Md. 75 , 227 A. 2d 226 (1967). We conclude that there was sufficient evidence of primary negligence to take the case to the jury. ii, iii Did the court err in refusing to direct a verdict for Western Maryland or at least in failing to instruct the jury on Griffis’ assumption of the risk? The simple answer to this question is that the defense of assumption of the risk may be invoked only when the plaintiff intentionally exposes himself to a known danger or is held as a matter of law to have done so. Compare Sachs v. Pleasant, 253 Md. 40 , 251 A. 2d 858 and cases there cited with Finzel v. Mozzarella, 248 Md. 227, 230 , 235 A. 2d 726 (1967).

See Honolulu Ltd. v. Cain, supra, 244 Md. at 600 ; Velte v. Nichols, 211 Md. 353 , 127 A. 2d 544 (1956) and Yaniger v. Calvert Bldg. & Const. Co., 183 Md. 285, 289 , 37 A. 2d 263 (1944). There was no testimony that Griffis knew of the danger. But even if this were not the case, the court’s instruction on contributory negligence was broad enough to cover an assumption of the risk: “Secondly, I will instruct you as to the duty of the Plaintiff to protect himself by the exercise of reasonable care. “* * * I instruct you that if you find that the Plaintiff knew or by the exercise of reasonable care could have known of any hazardous condition and chose to take such a route with a hazardous condition existing there ⁶⁴⁹ on and expose himself to such hazards, then that would i be contributory negligence on his part and you would be bound to render your verdict for the Defendant. “If you find that the Plaintiff knew or by the exercise o,f reasonable care should have known that he had a choice of two routes and further by the exercise of reasonable care that he should have known that one route was hazardous and one route was free of hazards, but chose to take the hazardous route with this knowledge and that his injury resulted from that action, then that would be contributory negligence on his part and you would be bound to render your verdict for the Defendant.” The line between contributory negligence on the one hand, and assumption of the risk, on the other, is a thin one.

Baltimore County v. State, use of Keenan, 232 Md. 350 , 193 A. 2d 30 (1963), and we have held that an instruction can cover assumption of the risk without using those words, if the question is presented to the jury on the court’s charge. Bull Steamship Lines v. Fisher, 196 Md. 519, 529 , 77 A. 2d 142 (1950). There was ample evidence to support a jury finding that Griffis did not understand the risk of harm to