first being had and obtained, that all improvements which they may be permitted to make shall, at the expiration or other termination of the tenancy hereby created, be and become the property of the said parties of the first part," the lessors. andments to the premises without the written consent of the lessors, and that "after such consent has been given, unless otherwise agreed upon in writing, all alterations, additions, and improvements made by the lessee at his own expense upon the premises shall, at the option of the lessor, remain upon the premises at the expiration" of the lease, and become the property of the lessor. Prior to the execution of the lease of January 26, 1909, there was a shaft in the leased building, but no elevator. A block and fall was used in the shaft. After its execution an elevator worked by hand was erected, but before the expiration of the lease it was removed, and another, electrically driven, with motor and machinery, was installed in its place. This elevator, which was attached to the building by bolts and nuts, remained upon the premises until just prior to the 31st day of March, 1919, when, without the knowledge and consent of the plaintiffs, it, with the motor and machinery, was removed by the defendant, without injury to the building other than the holes in the shaft caused by the withdrawal of the bolts. After its removal it was sold by the appellants for the sum of $100, and afterwards bought by the "We are clear that in the lease now before us appellees and reinstalled in the building at the agreement that the 'alterations, improvea cost to them of $925, the amount of the ments, and additions' made by the tenant should judgment recovered in this case, which it is remain upon the premises and become the propagreed was a reasonable cost for such instal-erty of the lessor was intended to apply to allation. The lessee installed its presses and printing machinery in the building, and as a part of its plant put in electric power and lighting appliances to furnish power and light for its presses. Presses were bolted to the floors, and the wires were placed in conduits fastened to the walls, but not imbedded therein. The lessee, in attempting to remove the electric wiring, conduits, and switchboard from the demised premises at the termination of his tenancy, was restrained by injunction issued by the lower court. It is shown by the agreed statement of facts that all errors of pleadings were waived, and it was agreed that the case should be treated as though the pleadings were properly at issue. The claim is made by the appellees that, under the terms and provisions of the lease, the elevator, motor, and machinery installed by the lessee were improvements that became the property of the lessors at the expiration or termination of the tenancy, and should not have been removed from the premises by the lessee. The court in that case, in reviewing and reversing the action of the lower court in granting the injunction, said: terations, improvements and additions to the building, and not the machinery, or that is in * The In determining this question the intention of the parties, gathered from the terms and provisions of the lease, must be ascertained. [1] The general right of a tenant to remove fixtures and articles of personal property may be controlled by an express contract between the parties; but covenants restricting, or claiming to restrict, the tenants' ordinary right to remove such property, are always strictly construed, and can- as to cover chattels or personal property not be extended by implication. Fox v. Lynch, 71 N. J. Eq. 537, 64 Atl. 439; Montello Brick Co. v. Trexler, 167 Fed. 483, 93 C. C. A. 118. In Lindsay Bros. v. Curtis Publishing Co., 236 Pa. 229, 84 Atl. 783, 42 L. R. A. (N. S.) 546, the language of the lease there involved was very similar to that found in the lease before us. In that case the premises were leased to be used as a printing and publishing establishment. The lease provided that the lessee should not make alterations, additions, or improve brought upon the premises by the tenant in pursuance of the business for which the premises were leased. We find no such clear agreement in the language of the lease which constitutes the contract between the parties in this case." The inquiry in this case is whether the installation of the elevator, and the motor and machinery thereto attached, were intended by the parties to be included in the term "improvements" as used in the lease. The language of the lease is that the lessee "will not make any substantial alterations (111 A.) in said premises without the consent" of the first lease of January 26, 1909, having left the said elevator, motor, and machinery upon the said premises after the expiration of the term of said lease, thereafter lost the right to remove them as trade fixtures, assuming them to have been trade fixtures, and even assuming that they were not improvements within the meaning of the covenants of said lease." This court in Carlin v. Ritter, 68 Md. 478, 13 Atl. 370, 6 Am. St. Rep. 467, stated the rule as established by the modern decisions to be "that where a tenant quits possession or surrenders the premises unqualifiedly to The meaning of this language is that the lessee was to make no substantial alterations in the premises without first obtaining the permission of the lessors to make such alterations, and when their permission was obtained and the improvements were made the same were to remain upon the premises at the expiration of the tenancy, and were at such time to become the property of the lessors. "Improvements" and "substantial his landlord without removing or reserving alterations" are interchangeably used as meaning the same thing. The contemplated improvements which were to become the property of the lessors were confined to improvements in the nature of alterations to the premises or building, that required the permission of the lessors before the same could be made by the lessee. The shaft in which the elevator was installed was in the building at the time of the execution of the lease of January 26, 1909. At that time no elevator had been installed by the lessors. The shaft had been erected in order that an elevator might at some time be operated in it, and whenever this was done holes through the shaft, such as those mentioned herein, would be necessary in its installation. A block and fall was for a time used in the shaft, but, owing to the increase in lessee's business, he discontinued its use and erected a hand elevator therein, and when his business still further increased he removed the hand elevator and installed an electrically driven elevator. This was all done that he might better enjoy the use of the leased premises in the management and conduct of his business. [2] The supplying by the lessee of the hand elevator and then the electrically driven elevator with the necessary motor and machinery, which the lessors had failed to provide, though contemplated at the time of the erection of the shaft, were not alterations in the building or premises, nor improvements for which the lessee, under the covenants contained in the lease, had first to obtain the permission of the lessors before he could make the same; or at least it is not clear from the language used, considered in connection with the facts and circumstances disclosed by the statements of facts, that the installation of such elevator, motor, and machinery was intended by the parties to be included in the "improvements" that were to become the property of the lessors at the expiration of the lease or termination of the tenancy, and it is from the particular facts and circumstances in each case that the intention of the parties must be ascertained. The further claim is made by the appellees "that the appellant, as tenant under the his fixtures, he is understood to make a dereliction of them to his landlord," and the rule so recognized was followed in Bauernschmidt Co. v. McColgan, 89 Md. 135, 42 Atl. 907; but in 1898 the Legislature of this state passed a statute (chapter 92, § 27, art. 53, § 28, of the Code, which provides that "the right of a tenant to remove fixtures erected by him under one demise or term shall not be lost or in any manner impaired by reason of his acceptance of a new lease of the same premises without any intermediate surrender of possession." The appellees contend, however, that this statute has no application to this case "because the second lease, that of March 17, 1914, was to a different tenant, the corporation, the John Rasch Co. Inc." In support of this contention the appellees offered their first prayer in the court below, which was refused, The court, we think, acted properly in refusing to grant this prayer. The lease of January 26, 1909, was to John Rasch individually; but while it was in force and before its termination, the John Rasch Company was incorporated, and the property of John Rasch, consisting of the stock and fixtures, was taken over by the corporation, which was thereafter treated and recognized by the lessor as her tenant. At the expiration of this first lease, the lease of March 17, 1914, was executed. This lease was to the then existing tenant and the owner of said trade fixtures, the John Rasch Company, Inc. While this lease was in force and before its termination the John Rasch Company, Inc., was dissolved, and the stock and fixtures turned over to John Rasch, who was again recognized and treated as the tenant by the lessors. At the expiration of this second lease the third lease was executed on the 31st day of December, 1918. This time John Rasch (the then existing tenant), trading as the John Rasch Company, was named as lessee. The first lease was to John Rasch individually; the second was to the corporation the stock of which, with the exception of The court in that case held that inasmuch as the lessee, De Alba, accepted from the landlord a new lease without reservation of said fixtures, his right to remove them was lost, and they were considered as having been surrendered to the landlord at the expiration of the first term. three shares, was owned by John Rasch; | sale transferring the said fixtures had been and the third lease was to John Rasch, trad- | executed, entered upon the premises and reing as the John Rasch Company, Inc. In moved them, claiming his right to it under two of these leases John Rasch was the the bill already mentioned. lessee and in the other the owner of practically all of the stock of the lessee corporation. That he was, by the lessors, regarded as the lessee in each and all of these leases, is shown by the agreed statement of facts, in which it is said, "The lease of the 26th of January, 1909, was duly executed by Mary S. Reitz, the predecessor in title of the plaintiffs herein and the defendant;" that "the lease of the 17th of March, 1914, was duly executed by the parties hereto," one of them being John Rasch, trading as the John Rasch Company; and "that on the 31st day of December, 1918, a lease was entered into between the Safe Deposit & Trust Company of Baltimore, Trustee, one of the plaintiffs herein, and the defendant herein." It will thus be seen that by the agreed statement of facts John Rasch was regarded and treated by the lessors in all of said leases as the lessee of the premises. In Bauernschmidt Co. v. McColgan, supra, McColgan leased to Klise property in Baltimore City for the term of one year, beginning on the 1st day of April, 1895. Klise occupied the property but a short time, and on April 30th assigned the lease to Wineke, who, having entered into possession, made such changes in the building which to him seemed to be requisite for the conduct of his business; and on the 17th day of October, 1895, he assigned the lease and turned over the possession of the property to Alfred R. De Alba. On the 2d day of April, 1896, De Alba took from McColgan a new lease of the property for the term of one year from the 1st day of April, 1896. In the lease there was no reference made to the former lease, and there were no reservations of the right of the tenant for the fixtures that were placed in the building by a former tenant. De Alba remained in possession of the premises until the 16th day of July, 1896, when he vacated. A few days before he left, Bauernschmidt Company, to whom a bill of The court, however, in that case, after holding that the act of 1898, c. 92, had no application thereto, as the rights of the parties accrued before its passage, speaking through Judge Page, said that the fixtures became a part of the freehold, "and the full extent of De Alba's right was to restore them to their condition as chattels at any time during the term. If he failed to exercise that right at the end of the term, the landlord's right to possess the land and the fixtures as part of it immediately vested." In so holding the court treated De Alba, the assignee of the lease and the party to whom the fixtures had been transferred by a former tenant, in the same position in respect to the right of removal as the tenant making such improvements. [3] The John Rasch Company, the assignee of the original tenant, John Rasch, and the owner of the fixtures under a transfer from him and the accepted tenant of the lessors, was not, under a proper construction of the statute, required to remove the fixtures at the expiration of the tenancy under the lease of January 26, 1909, or to reserve its rights therein by any provision inserted in the lease executed as of March 17, 1914, in order to retain its right to said fixtures. Any other, we think, would be a too narrow construction of the statute. The court, in our opinion, should have granted the instructions asked for by the plaintiff that the case be withdrawn from the consideration of the jury, and consequently we must reverse the judgment below. Judgment reversed without a new trial, with costs to the appellant. (136 Md. 406) (111 A.) WALTRING v. JAMES. (No. 5.) (Court of Appeals of Maryland. June 16, 1920.) 1. Municipal corporations 706(7) Contributory negligence of pedestrian run down by automobile for jury. In an action for injuries to a pedestrian run down by an automobile in a street, whether plaintiff was guilty of contributory negligence held for the jury. 2. Negligence 136 (26)-Contributory negligence when a matter for the jury. Unless the act and conduct of the plaintiff, relied on as amounting in law to contributory negligence, is established by clear and uncontradicted evidence, the case should not be withdrawn from the jury, and, when the nature of the act relied on can only be determined by all the circumstances attending the transaction, it is within the province of the jury to characterize it. 3. Municipal corporations 706 (6)-Negligence of automobilist running down pedestrian for jury. In an action by pedestrian run down by defendant's automobile, whether defendant was guilty of negligence held a question for the jury. BRISCOE, J. The record in this case contains 16 bills of exceptions to the action of the court in its rulings upon the admissibility of testimony and upon the prayers reserved by the plaintiff at the trial in the court below. the plaintiff below, against the appellee, the The suit was brought by the appellant, defendant, in the circuit court for Harford county, but removed to the circuit court for Baltimore county, where, upon trial, a verdict was rendered in favor of the defendant, and from a judgment on this verdict the plaintiff has taken this appeal. cause of action, and is as follows: The plaintiff's declaration sets out the For that the defendant was the owner of an automobile which was so carelessly and negligently used and operated by the defendant, his agent or servant, on one of the public streets in the city of Havre de Grace, in said Harford county, Maryland, at a highly excessive and unlawful rate of speed, and on the left of the center of the said public street, on or about the 18th day of April, 1918, so that in consequence thereof the said automobile of the defendant struck and seriously injured the plaintiff, who was lawfully crossing said street in the exercise of ordinary care, in consequence of which the plaintiff was thrown down and run over by said automobile, his right shoulder broken, his left shoulder blade broken, his nose smashed, his lung punctured, his face torn open and a portion of his scalp torn loose, and other parts of his body bruised and lacerated, so that he was seriously and permanently injured by reason of said physical injuries and shock caused thereby to his nervous system. And the plaintiff claims therefor $30,000 damages; and hence brings this suit. At the close of the testimony on the part of the plaintiff and the defendant the court below withdrew the case from the jury by granting the defendant's second prayer, which directed a verdict for the defendant upon the ground "that under the pleadings it appears from the uncontradicted evidence in the case that the negligence of the plain Appeal from Cincuit Court, Baltimore tiff directly contributed to the happening of County; Allan McLane, Judge. "To be officially reported." Suit by Charles T. Waltring against Harry B. James. Judgment for defendant and plaintiff appeals. Reversed and remanded for new trial. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, and STOCK BRIDGE, JJ. the accident complained of and their verdict must be for the defendant." The defendant's special exception to the plaintiff's first prayer was granted upon the ground there was no evidence in the case legally sufficient to support the hypothesis of the prayer, to wit, that the injury referred to in this prayer resulted directly from the want of ordinary care and prudence on the part of the driver of the defendant's automobile. A. F. Brown, of Havre de Grace, and The rules of law bearing upon negligence James J. Archer, of Bel Air (Elmer J. Cook, and contributory negligence have so often of Towson, on the brief), for appellant. and recently been announced by this court Philip H. Close, of Bel Air (T. Scott Of-in similar cases to the one now before us futt, of Towson, and S. A. Williams, of Bel that a mere reference to a few of the cases Air, on the brief), for appellee. should be sufficient to establish the general For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes rule by which questions of this character must be determined. Burke v. Baltimore City, 127 Md. 560, 96 Atl. 693; Hempel v. Hall, 136 Md. 174, 110 Atl. 210; Central Railroad v. Coleman, 80 Md. 337, 30 Atl. 918; Mayor & City Council of Baltimore v. Mattern, 133 Md. 16, 104 Atl. 478. In McNab v. United Rys. Co., 94 Md. 724, to it; I was looking right down at it; and I 51 Atl. 421, this court said: "Contributory negligence is simply negligence, and is, like primary negligence, relative, and not absolute, and, being relative, it is dependent on the peculiar circumstances of each particular case. There are many acts which would not be negligent when done under some conditions, though the same acts if done under different conditions might be highly negligent. And this is equally true of contributory negligence. So, ultimately, in every case of this character it becomes necessary to view the entire surroundings to determine whether either primary or contributory negligence has been established." As the action and ruling of the court in this case in granting the defendant's prayer, directing a verdict for the defendant, presents the principal and important question in the case, it will be considered by us before passing upon the questions raised by the exceptions to the rulings of the court upon evidence. The material facts of the case are these: The plaintiff was a resident of Louisville, Ky., and on the day of the accident was attending the races at Havre de Grace, Harford county. He was returning from the race track to the station of the Pennsylvania Railroad at Havre de Grace, a distance of about a mile and a quarter, to take the train to Baltimore, and while crossing the driveway leading up to the station was struck by the defendant's automobile, before reaching the station, which was engaged in transporting passengers between the race track When we came here (indicating the intersection of the path with the roadway) I looked down this way for automobiles, as I always do, and looked this way (indicating). I didn't stop, however; I walked slowly and looked down, looking this way. I looked down the street this way, the full length of the street, to this turn here (indicating). I looked down looked down the street like that (indicating), straight ahead like that (indicating). There was no machine, diagonally across, looking to my right. I don't remember ever getting over that road; I don't remember any impact of any machine, or anything. When I came to at the hospital I didn't know what had happened to me. They told me I had an automobile accident. I said where and how. I didn't know I was in the hospital; I knew nothing." He also testified that he did not see the machine at the time of the accident, nor hear any horn blown or any warning given by the automobile that hit him. The witness Hayes, who walked with the plaintiff up the path across the lawn towards the station, and crossed the driveway in front of the station. testified in part as follows: It That as they approached the driveway he looked very carefully down the road to the intersection of Juniata street, and saw no automobiles on the road, and then proceeded to cross the driveway. Q. What happened, if anything? A. Well, as we got to the other side, I stepped off the road and turned quickly, and just see the front wheel falling off his body, this car was going over Mr. Waltring. I could and the back wheel proceeding to go over. slowed up and went over, and as it went over it went on further down the road. Q. You were walking in front of him, but close enough to carry on a conversation? A. Exactly. Q. Had you or not seen the automobile before it struck him? A. I never saw it. Q. Can you say about how long it took you to walk across that driveway from where you say you looked when you stepped off the path until you saw Mr. Waltring under the machine? Can you and the station. The automobile was a sevenpassenger Studebaker, owned by the defend-state how long it took you and how wide that ant and in charge of a chauffeur, hauling passengers for hire between the race track and the railroad station, and was approaching the station at the time of the accident with a load of passengers. The location of the station, the driveway, and the streets is shown upon a drawing set out in the record, and it appears therefrom that the plaintiff was struck while proceeding to cross the road or driveway, which was about 25 feet in width and leading up to the station. The plaintiff testified that on the day of the accident he walked from the race track toward the Pennsylvania Railroad station in Havre de Grace, after the races, and that he walked down this path "A and B," to ward the railroad station. "Q. When you got to the point 'B' tell us what you did? A. When I came down this pathway I was speaking with a friend of mine. driveway is? A. Well, I should say the driveway would be 25 feet, according to the plat, and it took between five and six seconds to walk across, that he heard no horn blown, and he would have heard it if it had been blown, and that he did not see the automobile until after it had struck the plaintiff and was passing over his body. The witness Cosgrove, a special officer of the Pennsylvania Railroad, who was at the station and saw the accident, testified in part: "As I was standing there I saw these machines coming from this course here up the road and turn into the driveway to the station, and under my range of view there were three machines coming up here, and one shot out from the back of the other two and came up here (indicating), and struck this man and knocked him about six feet from the machine, and fell opposite from the machine on the left |