Windsor v. Goldscheider

Barnes, J., delivered the opinion of the Court. This appeal is from a judgment granted by the Circuit Court for Montgomery County on appellees’ motion for a directed verdict at the close of appellant’s case. The trial judge stated that appellant had failed to make out a prima facie case of negligence and, furthermore, that appellant was guilty of contributory negligence as a matter of law. The facts, for the most part, are undisputed.

We think, viewing the testimony, and the inferences from it, in a light most favorable to the appellant, that there was sufficient evidence presented by the appellant, as the plaintiff below, from which the jury could have reasonably found for the appellant and that the lower court must be reversed. The appellant was a tenant in the appellees’ apartment house for about two years before July, 1962. For about six months prior to July, 1962, a chain link fence ran the length of a cement path that extended from the apartment house to the street sidewalk. The chain link portion of the fence was affixed to the top metal tubular rail of the fence by a series of twisted metallic wires which encircled the top rail and projected out on the far side of the fence at right angles to the fence.

These projections were not readily visible from the path. There was no evidence that the method used in twisting the metallic wires and leaving them as projections was the proper and usual method of erecting this type of fence. On the date involved, the appellant was walking with his three year old son down the cement path towards the sidewalk. The child broke away from appellant’s grasp and ran toward ²²² the heavily traveled street.

The appellant ran after the child and reached over to the fence to steady