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Smith v. Bernfeld

Decided: October 11, 1961.

SMITH ET AL.
v.
BERNFELD, ETC.



Appeal from the Circuit Court for Prince George's County; Powers, J.

Brune, C. J., and Henderson, Hammond, Prescott and Sybert, JJ. Brune, C. J., delivered the opinion of the Court.

Brune

The plaintiff wife, Margaret L. Smith, and her husband, Albert H. Smith, brought this suit against Jules Bernfeld, the defendant, a beauty parlor operator, for injuries sustained by Mrs. Smith while she was a customer at one of the defendant's beauty parlors and by her husband for medical expenses incurred by him as a result thereof. The jury returned verdicts for both plaintiffs. The trial court entered judgment n.o.v. for the defendant, and both plaintiffs appeal. (Where "the plaintiff" (singular) is spoken of below, the reference is to Mrs. Smith.)

The declaration alleged that the plaintiff was a customer at the defendant's beauty parlor, that she was awaiting service in a beauty salon chair provided for customers, that she "leaned forward to place her pocketbook on a counter directly in front of such chair and that such chair tilted forward causing plaintiff to fall upon the floor and the chair to fall upon her" and that the fall was due to the negligence of the defendant in failing to have the chair properly and firmly attached to the floor or in failing to provide a chair of sufficient balanced weight to withstand the weight of a customer sitting in the chair and "leaning forward under such circumstances." The plaintiff's testimony at the trial as to the chair toppling over is in general accord with the above allegations, but is further to the effect that as she sat in the chair with her heels hooked behind a tubular bar serving as a footrest at the front of the chair and that as she started to settle back with her arms on the chair arms and her feet on the footrest, the chair tipped over, threw her on one side and fell on her. She also testified that two employees of the defendant had stated after the accident that the chairs tipped over easily, that several other people had nearly fallen out of them, and that it was customary for each of these employees to stand behind his or her chair when a customer was getting in or out. At the trial only one of these employees testified. He then ascribed

his custom largely to the tendency of children who got in his chair to climb over it at all angles. (Though the plaintiffs had called him, they asked and were permitted to cross-examine him as a hostile witness.)

The plaintiffs' case in the trial court was pitched upon the defendant's negligence in failing to bolt the chair in question to the floor or to furnish a chair of sufficient balanced weight as not to tip over. No claim was stated as to any failure of any of the defendant's employees to steady the chair while the plaintiff was getting into it or upon any duty to warn and failure to warn her of danger; nor was any instruction along those lines given or, so far as appears, requested. The alleged statements of employees were apparently offered to show that the chair was of defective construction and to bring home knowledge thereof to the defendant through the knowledge of these employees. In this Court the appellants seek to lay much emphasis on the doctrine of res ipsa loquitur, but no contention based thereon, so far as the record discloses, was made in the trial court.

Neither the chair involved in the accident nor a chair of the same type was produced in court, but it was described to some extent and its construction was made clearer by a sketch in a catalogue. It has four legs of tubular metal shaped more or less like spider legs which come together at a collar or hub roughly under the middle of the seat. Through this collar passes a treaded spindle, to which the seat is attached. By turning the seat on the spindle the chair can be raised or lowered through a range of about ten inches. A pin in the spindle limits the height to which the chair can be raised. Attached to the seat is a back, with arms coming forward from it. Also attached to the chair below its front edge and protruding perhaps six inches (exactly how much is not stated) is a tubular footrest. The chair had been raised to some unstated extent for the first phase of the plaintiff's treatment, she had left it temporarily and had returned for further attention.

There was uncontradicted evidence on behalf of the defendant to show that the chair in question was of a standard type used in beauty parlors, that it was made by a large and established

manufacturer of such equipment and sold on a nationwide basis, and that the defendant had used chairs of the same or essentially similar design for fifteen years in his beauty parlors in serving more than 20,000 customers, none of whom, other than the plaintiff, had ever fallen out of one, and that a sales representative of the manufacturer who had been in the business for twenty-seven years had never known of anyone else falling out of one. This witness also testified, without contradiction, that chairs of similar design were installed in 95% of the beauty parlors designed and equipped by his company, and were made by the largest manufacturer of equipment in this particular field.

The general rule by which the sufficiency of the evidence is to be tested when this Court is reviewing a motion for a directed verdict or judgment n.o.v. for the defendant is well established as being that this Court must resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff's right to recover -- that is, the evidence must be viewed in the light most favorable to the plaintiff. Campbell v. Jenifer, 222 Md. 106, 110, 159 A.2d 353; Zeamer v. Reeves, 225 Md. 526, 530, 171 A.2d 488. A difficulty may arise in a case such as this where the defendant offers evidence to show some fact or facts by way of defense. Such evidence, where the facts are conceded or are undisputed, may be considered in reviewing a ruling on a motion for a directed verdict or in entering judgment n.o.v., but may not be so considered if the evidence is merely uncontradicted, if its truth is controverted. Alexander v. Tingle, 181 Md. 464, 30 A.2d 737. The rule of this case, as well as the practical difficulty of applying the distinction ...


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