Appeal from the Superior Court of Baltimore City; Manley, J.
Brune, C. J., and Henderson, Horney, Marbury and Sybert, JJ. Brune, C. J., delivered the opinion of the Court.
The plaintiff-appellee, Jacobs, sued the defendant-appellant, Nalee, Inc., (Nalee) trading as the Pimlico Hotel, to recover for injuries sustained when a bench in the defendant's hotel tipped over and struck and injured the plaintiff's right foot. At the end of the plaintiff's case defendant elected not to adduce any evidence, the trial judge denied its motions for a directed verdict, and the jury returned a verdict of $3,500 for the plaintiff. Nalee's motion for judgment n.o.v. was denied and Nalee appeals from the judgment entered on the verdict of the jury. The charge to the jury included an instruction that the plaintiff was free from contributory negligence as a matter of law, and there is no appeal on that score. The only issue is whether there was sufficient evidence of primary negligence
for the case to go to the jury. In passing on this question on the defendant's motion for a judgment n.o.v., the trial court held that the evidence was sufficient either with or without reliance upon the "doctrine" of res ipsa loquitur. The defendant contends at the outset that the plaintiff is not entitled to rely upon res ipsa loquitur (a) because he did not do so at the trial and (b) because he tried unsuccessfully to prove grounds of alleged specific negligence. The defendant further contends that even if res ipsa loquitur were available to the plaintiff, the facts do not support its invocation and that they do not support any inference of negligence on the part of the defendant. We think that the determination of this last contention is decisive of the case.
The plaintiff was a member of a group which met once a month at the hotel for cocktails, dinner and conversation. Usually they met in a room on the first floor known as the Preakness Room, but on the night of the accident, December 14, 1958, they gathered in another room on the second floor. Shortly after his arrival, the plaintiff became engaged in conversation with three other men. He and one of the others were standing directly in front of a bench located along one wall; the other two were seated on the bench. This bench was about twelve to fifteen feet long and was generally described as the type one would ordinarily find in a "club basement." It was constructed in two pieces: first, a heavy wooden frame with a rectangular base and an upholstered back, and, second, an upholstered seat which fitted on the base. It was not fastened to the floor or wall in any fashion. During the course of the conversation one or both of the two men on the bench either moved or leaned forward or otherwise shifted their weight while seated, and the bench tipped forward. As it tipped, the upholstered seat portion of it slipped off the frame and landed on the instep of appellee's right foot. During this occurrence the two men who had been sitting on the bench remained more or less in their sitting positions as the bench tipped forward. After the seat hit the floor and the appellee's foot, they raised or straightened themselves up, tipping the frame of the bench back into an upright position, leaving the upholstered seat portion on the floor.
The testimony shows that the bench appeared to be and was in fact quite heavy. All the witnesses who described it agreed that it was either "substantial looking", "heavy," or "very heavy." The appellee testified that it was a "substantial looking piece of furniture," that he saw "absolutely" nothing wrong with it, and that it presented a "solid picture," indicating that, before the accident, its appearance was that it either was all one piece or that the upholstered seat was attached to the frame. A waiter who was present at the time of the accident testified that "the frame and back was [sic] all one piece, and it was very heavy." He said further: "No one could possibly pick * * * [it] up by themselves [sic]. You couldn't move it. It didn't move." He also testified that the bench appeared to be all one piece when one looked at it. Shortly after the accident, this witness carried the upholstered seat out of the room by himself, but the frame part later had to be carried out by three men. That evening, or the next morning, the bench was seen in the hotel's parking lot, and it was taken away sometime thereafter. Neither the bench itself nor a picture of it was produced at the trial.
The bench had originally been used in the Preakness Room, but in a part of that room which had been used only once by the plaintiff's group. About three weeks prior to the accident, it had been moved to the second floor during redecoration of the Preakness Room. The bench had been in a position along a wall in the Preakness Room as part of a booth. Next to it was a rounded, similar bench, fitting into a corner. The waiter testified that these two benches were not attached together. His testimony, which was the only testimony on the subject, was not clear as to whether the bench that tipped over was "built and fitted into" the wall when it was in the Preakness Room. He first said that it had not been, but later said that, although he didn't "believe so," "it could have been" fitted into the wall behind a moulding that ran along the walls of the Preakness Room. There was no evidence that it had been tipped while in the Preakness Room, nor was there any that it had not.
The seat that slid off the bench was so upholstered that along its front edge it was considerably higher than along the
rear edge. The thickness of the upholstery at the front was stated to have been about 12 inches; the thickness at the rear about 6 inches. It is said to have sloped back at an angle of 45 degrees. It seems a reasonable inference that if occupants of the bench put their weight on the forward edge, this would tend to cause the whole bench to tilt and to slide the seat off the base if the seat were not securely fastened. It seems to be conceded and certainly is evident from the testimony that it was not fastened at all.
Since the plaintiff and other members of his group were business invitees of the defendant, the latter owed them a duty to see that the premises and equipment intended for their use were reasonably safe and to warn them of any dangerous condition known, or which reasonably ought to have been known, to the defendant, but not to his patrons. Dickey v. Hochschild, Kohn & Co., 157 Md. 448, 146 A. 282; Moore v. American Stores Co., 169 Md. 541, 182 A. 436; Williams v. McCrory Stores, 203 Md. 598, 604, 102 A.2d 253; Evans v. Hot Shoppes, Inc., 223 Md. 235, 239-41, 164 A.2d 273; Smith v. Bernfeld, 226 Md. 400, 406, 174 A.2d 53. This case differs from Williams v. McCrory Stores and Smith v. Bernfeld, just cited, in that it was the use of the bench by some of his fellow business invitees and not by the plaintiff himself which was the immediate occasion of his injury. Such use was, however, well within the ...