Washington Market Co. v. Clagett

19 App. D.C. 12, 1901 U.S. App. LEXIS 5093

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 5, 1901
• Docket: No. 1110
• Status: Published

Opinion

Mr. Chief Justice Alvey

delivered the opinion of the Court:

This was an action instituted by the appellees, Mrs. Emma L. Clagett and Maurice J. Clagett, her husband, against the appellants, the Washington Market Company and Frederick L. Grünewald, surviving partner of the late firm of W. M. Moreland & Company, to recover for personal injuries sustained by the female plaintiff, occasioned, as • it is alleged, by the joint neglect of the defendants, while the plaintiff was attending a market, on December 2d, 1898.

It is alleged, and shown in proof by admission, that the Washington Market Company, at the time of the occurrence of the injury complained of, was a body corporate, organized and operated under the laws of the United States, and was in possession and control of the market-house and premises, in the city of Washington, known as the Center Market, extending from Seventh street west to Ninth street, and. from B street north to Pennsylvania and Louisiana avenues in said city: That said market company rented or leased stalls or stands in the market-house to divers persons for market purposes, but retained a general supervision over the building, and over all the aisles and corridors thereof.

It appears that, at the time of the accident, the Center Market had four main aisles running east and west from Seventh to Ninth street, and a number of side aisles running at right angles to the main aisles. The most southerly of the four main aisles, that on the side of the market-house nearest to B street, was known as the “ fish ” aisle. These aisles were entered from the outside of the market-house by means of or through blind or double doors, which were constructed in one piece, without any glass in them, and swung on a pivot in the center, one side of the door ■ opening inwardly as the other side opened outwardly. These doors were eight or nine feet wide, and occupied nearly the whole width of the small or cross aisles.

It also appears that Moreland & Company were fish, game, and poultry dealers, and leased from the market company eleven stalls, which, were situated in the “ fish ” aisle, in the south wing of the market-house, between doors Nos. 16 and 19, and on both sides of door No. 17. These stands were used by them for selling and storing fish, and the fish was generally delivered and taken in through doors Nos. 17 and 18, which were in the center of their stalls.

It being the duty of the market company to superintend and to keep in proper and safe condition the market-house and all its aisles and corridors, it employed for the purpose of patrolling the premises and keeping things in order, four watchmen, two for day and two for night service, besides a certain number of sweepers. It was the duty of these watchmen to maintain a constant patrol of the aisles of the market-house, and every part of it, while the market was open; but it would seem from the testimony that there was no inspection or patrol by these watchmen, or any of them, of the u fish ” aislé, where the accident occurred, during the day, after about 9 o’clock, a. m., of December 2d, 1898. The market-house was open every week day, but the regular days were Tuesdays, Thursdays and Saturdays. The fishmen were required by the market company to do their own cleaning up around their stands, and Moreland & Company employed a colored man for that purpose. Fish brought into the market-house for dealers was deposited in front of the benches or stalls, the tops removed from the barrels, the fish taken out and laid in boxes and iced down. Most of the fish was delivered early in the morning, but some of it was received during the market hours, and packages of fish coming by express were delivered up to 12 o’clock in the day. The watchmen employed by the market company were accustomed to permit the stall-owners to deposit boxes or barrels of fish or other articles in the aisles only long enough to enable them to unpack and put the contents in their proper places.

The plaintiffs lived in the country, and on the day of the accident, according to the testimony of the female plaintiff, she had occasion to go into the city and to the Center Market therein to do some marketing; that when she reached the market-house, somewhere between 1 and 3 o’clock, p. m., she attempted to enter the market-house by door No. 17 on B street; that this door was covered with black cloth or leather, and was in one piece, swinging from the center on a pivot; that as she attempted to enter the door there was no way of seeing where she was going; that she had entered through the various entrances a great many times before; but that, on this occasion, as she went up the step and started to go into the door — “ just as soon as I got in the door — my foot slipped from under me and I was thrown to the ground. I slipped on some fish — a pile of them — that were in the aisle, right next to the stall, just on the right-hand side towards Seventh street.” She was, as she says, thrown to the ground,— the floor of the aisle being composed of stone or marble — and she was severely hurt.

By another witness, an employee of Moreland & Company, testimony was given, though his estimate of time would seem to be very indefinite, that about half-past' 12 o’clock on Friday, December 2d, 1898, and about fifteen minutes before the accident happened, a barrel of fish had been brought in, and, by some means or other, it had been upset, and some of the fish and some of the ice were turned out in the aisle, just at the inside and in the way of the opening of the door, No. 17; that he saw the female plaintiff in the act of opening the door and stepping in, and that he called to her to mind or she would fall, but he could not say that she heard him; that he saw her fall, and he helped to get her up and to place her in a seat.

The witness further says that he had seen the fish and ice on the floor in the aisle a short time before the plaintiff came in, but he was engaged at the time and did not stop to take them up; but he picked them up after the accident happened. It is not shown that any of the watchmen employed by the market company had knowledge of the fact that the fish and ice had been turned out of the barrel and remained in the aisle, prior to the happening of the accident; though the evidence tends to show that neither of the watchmen had been in the “ fish ” aisle later than 9 o’clock, a. m., of that day.

At tbe close of the plaintiffs’ case the market company requested the court to direct a verdict in its favor, but that request was refused; and the defendants, resting the case upon the evidence offered by the plaintiffs, then offered several prayers for instruction

* as to the law, which were all refused, and in lieu thereof the court charged the jury upon the entire ease. To this charge exceptions were noted to parts thereof by the defendants; but upon examination of the entire charge we find nothing therein that could afford the defendants any just ground of exception. The charge throughout was most favorable to the defendants; and as showing the manner and scope of the inquiry submitted to the jury, we shall incorporate herein the parts of the charge excepted to by the defendants.

After explaining to the jury the nature of the case, the questions involved, and how they should be examined with respect to the evidence, the court proceeded in its charge to say:

“The duty of a party who has such an establishment as that, and the duty of the defendant the "Washington Market Company, being tbe owner of tbe property and leasing it to the various persons for tbe purpose of carrying on this business, reserving to itself tbe right and tbe duty of keeping tbe aisles and corridors open and free to tbe customers and patrons of tbe market at tbat place, would be to preserve its character of safety; tbat is to say, they must-not permit any accumulations of anything to remain in these aisles or corridors which are detrimental to and unsafe-to tbe customers who may resort there — tbe patrons of tbe institution. In tbat respect they are to exercise due care and diligence — reasonable care and diligence — such as ordinarily prudent persons would exercise with reference to their own safety and tbe safety of others. Tbat responsibility tbe law places upon them by reason of their position as tbe owners of tbe property, leasing it to individuals for tbe purposes of traffic and tbe sale of articles kept there for sale, to which tbe public are invited to go for tbe purpose of making purchases.

“ Now, there is some controversy between counsel in regard to tbe rule to be applied by tbe jury and by tbe court in understanding and determining tbe liability of tbe Washington Market Company — as to what their duty was. It was their duty, gentlemen, as I have said, to maintain tbe aisles and corridors of tbat place so as to make it reasonably safe for tbe public to visit there, and in doing tbat they are to exercise ordinary care and diligence. Now, what is ordinary care and diligence should be determined by you from all of tbe circumstances and surroundings developed by tbe evidence in relation to tbe situation there as to what it was necessary for them to do, bow much of a patrol it was necessary for them to maintain, and whether or not tbe number which tbe evidence may show were retained there and kept there for tbe purpose of patrolling tbe aisles and corridors was, in your judgment, such a force as would be fairly and properly sufficient in tbat situation,— tbe situation tbe evidence may show tbe market-house to have been in at tbat time. You should determine whether it was sufficient and reasonable, such as could reasonably be required of tbe market company with reference to the exercise of ordinary care and prudence. If you find that there was such a patrol, such a watch, as ordinary care and prudence would seem to require, then the Washington Market Company would not be liable. It would not be subject to a charge of negligence.

“I may stop right there, however, and say that there is no evidence of any actual notice (I believe I am right in that) to the Washington Market Company prior to the accident. I repeat, however, gentlemen, that if you find that the force which the evidence shows was maintained there as a patrol force for the purpose of watching the corridors and aisles and keeping them open and clear for pedestrians and customers who' resorted there was sufficient and reasonable under the circumstances, then you need not go any farther, as far as the Washington Market Company is concerned; but as to it your verdict should be for the defendant, the market company. But if you find, gentlemen, taking into consideration the situation and all the circumstances which are developed by the evidence as to what you may find from the evidence necessary to be done by the market company in the way of maintaining a patrol so as to make it safe, that they failed to provide an efficient and sufficient force ts^ insure that result, then if you find that the female plaintiff was in the exercise of reasonable care and used reasonable diligence in reference to her own safety, then, so far as the market company is concerned, the plaintiff will be entitled to a verdict. As to the other defendant, you will look to the evidence for the purpose of determining whether they had the opportunity, had the notice, had the knowledge of this dangerous material— the fish — knowing that it was in the way of this entrance and this aisle, and that they neglected and did not use due care and diligence to take it away, out of the way of pedestrians coming in at that door; and if you find that the female plaintiff came into the door and, in the exercise of ordinary care on her own part for her own safety, trod upon the fish and fell and was injured, the defendant, who is here as a partner of the firm of Moreland & Company, would be liable to a verdict.”

The foregoing is the part of the charge to which exception was taken by the defendants. As will be observed, the charge as it applied to the Washington Market Company was restricted, and the liability of that company was made to depend upon the question, whether it had provided and kept in the market-house such a patrol force as was reasonably required for watching and keeping clear and safe the aisles and corridors of the building; and if it had so provided, there was no liability on the part of the market company, and the verdict should be in its favor. It was not, therefore, the question of the neglect and inattention of the patrol force employed, according to the charge, but the question of its actual nonsufficiency to do the work, that was made the ground of liability. This restriction, however, certainly afforded no ground for exception to the defendants.

There is no doubt of the general proposition of law, that the grantee of a franchise to maintain a market, and who takes toll for his own benefit, incurs an obligation to maintain the market in a state and condition reasonably fit and safe for the purpose for which the franchise was granted; and if he erects or allows an obstruction to exist, which causes danger and injury to persons who frequent the market, he is as much liable as one who does so on a highway. Lax v. Darlington, 48 L. J. Q. B. 143, affirmed on appeal, L. R., 5 Exch. Div. 28.

That there was negligence in the case, on the part of some one acting for Moreland & Company, in allowing the fish and ice to be turned out in, and to remain on the floor of the aisle, can admit of no question. It was clearly the duty of the Washington Market Company to keep the aisles and corridors of the building free from all obstructions and danger to those invited to visit and patronize the market. The proof shows that the fishmen having stalls in the market, were required by the market company to do their own cleaning up around the stalls, and that Moreland & Company employed a colored man for that purpose. If the duty primarily incumbent upon the market company was, by that company, imposed upon the lessees or licensees of its stalls, the company would be liable for tbe negligence of sucb lessees or licensees; for the latter, as between tbe company and third parties, would be regarded as tbe company’s agents, and tbe maxim qui facit per alium facit per se would apply. Tbe company could not relieve itself of liability for tbe unsafe condition of these aisles, by imposing tbe duty of keeping them safe and free from obstruction upon its lessees or licensees of tbe stalls in tbe building. Tbe latter’s negligence in that respect would be tbe negligence of tbe company.

It would seem to be clear that tbe invitation that was held out to tbe public to visit and deal at tbe market was of a nature to assure every one that be or she could go into tbe market-house by tbe ordinary ways provided without incurring danger or risk to life or limb. It was tbe duty of tbe market company to guard against danger to their patrons, and if, by reason of tbe unsafe condition of tbe premises, an injury to a patron be sustained, without fault on bis part, tbe onus is upon tbe market company to show that it could not, by tbe exercise of reasonable care by those for whose acts and omissions it was liable, have prevented tbe accident.

Judge Cooley, in bis work on Torts, pp. 604-607, says, that when one “ expressly or by implication invites others to come upon bis premises, whether for business or for any other purpose, it is bis duty to be reasonably sure that be is not inviting them into danger, and to that end be must exercise ordinary care and prudence to render tbe premises reasonably safe for tbe visit.” And in tbe leading English case of Indermaur v. Dames, L. R., 1 C. P. 274, and 2 Id. 511, where tbe question was fully considered as to tbe rights of persons who, upon invitation, either express or implied, visit premises upon business which concerns tbe owner or occupier, tbe court said “that it was settled law that a visitor of that class, using reasonable care on bis part for bis own safety, is entitled to expect that tbe occupier shall, on bis part, use reasonable care to prevent damage from unusual danger which be knows or ought to Jcnow; and that, where there is evidence of neglect, tbe question whether sucb reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact.”

That case, and many other cases involving the same principle, were cited and quoted from with approval, by the Supreme Court of the United States, in a very elaborate and clear opinion delivered by Mr. Justice Harlan, in the case of Bennett v. Railroad Co., 102 U. S. 577, 582. Indeed, the principles laid down by the Supreme Court in this latter case would seem to be entirely conclusive of the present.

The appellants contend, however, that it was incumbent upon the plaintiffs to show affirmatively that the defendant, the Washington Market Company, had actual notice of the existence of the obstruction in the aisle by the spilling of the fish and ice, before the' accident occurred, to entitle the plaintiffs to recover against that company. But we think the question of actual notice to the parties representing the market company, in view of the facts of this case, is not material, and the right of the plaintiffs to recover does not depend upon the proof of such notice. If, however, it be conceded that notice was an essential element in the right of the plaintiffs to recover, the principle would apply that, having the means of knowledge, and negligently remaining ignorant, is equivalent, in creating a liability, to actual knowledge. This is the principle that was laid down in the House of Lords, upon great consideration, in the case of The Mersey Docks v. Gibbs, 11 H. L. Cas. 687, 701, and which has been quoted with approval by the Supreme Court, in the case to which we have already referred, of Bennett v. Railroad Co., supra.

In the opinion of Mr. Justice Blackburn, delivered in the House of Lords, in behalf of all the judges, and in which the House concurred, in speaking of the question of notice as to the existence of a dangerous obstruction in the entrance to the dock, it was said: “For a body corporate never can either take care or neglect to take care, except through its servants; and (assuming that it was the duty of the trustees to take reasonable care that tbe dock was in a fit state) it seems clear that if they, by tbeir servants, bad tbe means of knowing that tbe dock was in an unfit state, and were negligently ignorant of its state, they did neglect tbis duty* and did not take reasonable care that it was fit.” And so in tbis case, tbe Washington Market Company bad tbe means of knowledge, and if it did not avail itself of such means, its omission was negligence by its servants or agents, for wbicb it was bable. But, as we bave said, in view of tbe undisputed facts in tbis case, tbe fact of actual notice to tbe market company was not essential to tbe plaintiffs’ right to recover.

In view of tbe whole ease, and of tbe principles we bave stated, we perceive no ground whatever upon wbicb a reversal of tbe judgment can be claimed. Tbe case was submitted to tbe jury in a most favorable manner to tbe defendants; and upon tbe restricted ground wbicb tbe market company was held bable, according to tbe charge of tbe court, tbe jury must bave found that tbe market company bad failed to provide a sufficient force to patrol and keep the aisles and corridors of tbe building clear and in a safe condition. And, upon that supposition, tbe question of notice would, in any aspect of tbe case, become quite immaterial.

With respect to tbe question that was raised as to tbe form of tbe verdict as originally rendered, we perceive no merit in tbe objection taken to it. Tbe verdict as delivered was that tbe jury “ find said issues in favor of tbe plaintiffs, and that tbe money payable to them by tbe defendants is tbe sum of $1,000, to wit: $500 by each of tbe defendants.” Tbe jury simply undertook tbe inadmissible thing of making an equal apportionment of tbe amount of tbe verdict to be paid as between tbe two defendants. Tbis they could not do. They bad found tbe amount of tbe joint liability to be $1,000, and they bad nothing to do in apportioning tbe payment between the defendants. Tbe verdict as a whole was irregular and informal. But it would bave been competent for tbe court to bave received tbe verdict and amended it by striking out, as surplusage, all after the finding of the joint liability, tbat is to say, after the $1,000, leaving tbe verdict to stand for tbat amount; tbat being tbe manifest intention of tbe jury as to tbe amount of their joint finding. But it was equally competent to tbe court to pursue tbe course tbat was pursued, tbat of returning tbe verdict to tbe jury for correction. "We perceive no error in wbat was done. 28 Am. & Eng. Encyc. of Law, 365.

It follows from wbat we have said tbat tbe judgment should be affirmed; and it is so ordered.

Judgment affirmed.

Prayers offered by defendant and rejected by tbe trial court:

1. The jury are instructed that the defendant the Washington Market Company is not an insurer against accidents happening in the aisles of its market-house, nor is it liable for obstructions placed in such aisles by persons not in its employ or under its immediate control, unless it had notice of the presence of such obstructions. This notice may be either actual or constructive, the latter meaning that the market company, being under an obligation to exercise a general supervision of the aisles of its market-house and to keep itself reasonably informed about their condition, if an obstruction liable to cause accident remains in such aisles so long that said market company, in the exercise of ordinary care and diligence, could not help knowing that such obstructions existed, then the law imputes notice to it. In other words, it is notice in contemplation of law, and that is constructive notice.

2. And in this connection the jury are further instructed that the mere presence of an obstruction in one of the aisles of the market-house for from ten to twenty minutes does not itself necessarily impute notice to the market company. The law does not require impossibilities of aby person, natural or artificial, and it is impossible that all parts of the aisles of such a market-house should be under constant inspection. Consequently, it cannot be presumed that at the instant an obstruction is placed in or upon one of such aisles the market company is charged with notice thereof and is to be held liable for any accident happening therefrom if it does not cause it to be instantly removed. Every such case must be determined by its peculiar circumstances. The market company would not be liable to respond in damages for injuries sustained in an accident caused by an obstruction in or upon one of the aisles of its market-house unless actual notice was brought to it of the presence of such obstruction or unless such obstruction had existed for so long a time that said market company would necessarily have known of its presence had ordinary and reasonable care been exercised.

3. If the jury shall find from the evidence in this ease that from fifteen to twenty-five minutes before the accident in question happened a barrel containing fisb consigned to the defendant Moreland & Co. was by an agent of an express company brought in through door No. 17 of the market-house for delivery to Moreland & Co., and was by him deposited upon the floor of said market-house in front of a stall of said Moreland & Co., and that about five minutes later said barrel was placed behind one of the stands or stalls of said Moreland & Co. near to said door, and that later the barrel was in some way overturned and several of the fish contained therein fell upon the aisle of the market-house near to and in front of said door No. 17, and that within ten minutes thereafter the plaintiff, in entering said door, stepped upon one of the said fish and was thereby caused to fall and received the injuries complained of, the jury are instructed that notice of the unsafe condition of the passage-way cannot be imputed to said market company, nor can said market company be held to be guilty of negligence, as matter of law; and the jury is further instructed that there is no evidence in this ease that said defendant market company had actual notice of the presence of such fish; and without notice, either imputed or actual, of the presence of such obstruction, the market company cannot be held liable in this action.

4. While it is the duty of the defendant the Washington Market Company to keep the aisles of the market-house in a safe condition for persons lawfully using said market-house, yet if such aisles are rendered unsafe by the negligent act of a third person not in the employ of said defendant or directly under its control, said defendant the Washington Market Company is not responsible for damages resulting therefrom unless it had knowledge of such unsafe and insecure condition of said aisles or unless said unsafe and insecure condition had existed for a sufficient length of time for said defendant to have obtained knowledge thereof by the exercise of reasonable care and caution.

5. The jury are instructed that there is no evidence in this case from which they can find that the defendant the Washington Market Company did not maintain a proper and sufficient supervision of the aisles of its market-house on the occasion of the accident.— Reporter.