218 F2d 865 Marcley v. H O McAlister

218 F.2d 865

95 U.S.App.D.C. 54

Michael MARCLEY, by his mother and next friend, Elsie R.

Marcley, and Elsie R. Marcley, individually, Appellants,


H. O. McALISTER, Appellee.

No. 12136.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 22, 1954.

Decided Jan. 27, 1955.

Mr. Ralph. F. Berlow, with whom Mr. Kent D. Thorup, Washington, D.C., was on the brief, for appellants.

Mr. Cornelius H. Doherty, Washington, D.C., for appellee.

Before EDGERTON, FAHY and BASTIAN, Circuit Judges.


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Minor plaintiff was injured while playing in an addition being constructed to a school building, located in Bethesda, Maryland. From a verdict and judgment for the defendant, plaintiffs appeal.


We think that the trial court correctly applied the rule in force in Maryland in holding that, under the circumstances of the case, the plaintiff was either a trespasser or, at most, a licensee. This being so, the jury was properly instructed that 'defendant owes the duty to refrain from wantonly or willfully causing' minor plaintiff harm and 'owes the duty of not exposing plaintiff to hidden perils or dangers which (he) could not avoid by reasonable care on his part.' See Carroll v. Spencer, 204 Md. 387, 104 A.2d 628; State, to Use of Stanfield v. Chesapeake & Potomac Telephone Co., 1914, 123 Md. 120, 91 A. 149, 52 L.R.A.,N.S., 1170; Grube v. Mayor, etc., of Baltimore, 1918, 132 Md. 355, 103 A. 948, L.R.A.1918E, 1036; State, to Use of Lease v. Bealmear, 1925, 149 Md. 10, 130 A. 66; State, to Use of Potter v. Longeley, 1932, 161 Md. 563, 158 A. 6; State, to Use of Alston v. Baltimore Fidelity Warehouse Co., 1939, 176 Md. 341, 4 A.2d 739.




FAHY, Circuit Judge, dissents.