Bigg v. Hutzler Bros. Co.

• Decision Date: 28 October 1942
• Docket Number: No. 13.,13.
• Citation: 28 A.2d 609
• Parties: BIGG v. HUTZLER BROS. CO.
• Court: Maryland Court of Appeals

28 A.2d 609

BIGG

v. HUTZLER BROS. CO.

No. 13.

Court of Appeals of Maryland.

Oct. 28, 1942.

Appeal from Superior Court of Baltimore City; Eugene O'Dunne, Judge.

Action by Virginia R. Biggs against Hutzler Brothers Company, a body corporate, to recover for injuries sustained by plaintiff by colliding with a salesgirl in defendant's department store. From a judgment for defendant on verdict of the jury, plaintiff appeals.

Affirmed.

Before BOND, C. J., and SLOAN, JOHNSON, DELAPLAINE, COLLINS, MARBURY, and GRASON, JJ.

Wendell D. Allen, of Baltimore (Armstrong, Machen, Allen & Eney and J. Lorimer Miller, all of Baltimore, on the brief), for appellant.

Max Sokol, of Baltimore (Dickerson, Nice & Sokol, Deely K. Nice, C. Milton Dickerson, and M. William Adelson, all of Baltimore, on the brief), for appellee.

GRASON, Judge.

This is an action for damages resulting from a collision between a customer and a salesgirl in the defendant's department store; issue was joined on the general issue plea filed by the defendant. The facts of this case are as follows:

On January 27, 1941, about two o'clock P. M., the plaintiff (appellant) was walking east on a twelve foot aisle in the defendant's (appellee) large department store in Baltimore City. In the center of the aisle were tables upon which goods were displayed. The plaintiff passed the left side of a table and returned to about the center of the aisle. At this point this aisle is intersected by an aisle about four or five feet wide, which runs north and south. At the northwest corner of the intersection are four racks five feet eight inches high, two and a half feet wide, upon which coats were hung for inspection and sale. Between these racks there was space sufficient for customers and salesgirls to pass. These racks extended westerly along the twelve foot aisle for seven feet and set back from each aisle about one foot. East of the small aisle was the children's department and in the view of the plaintiff was a table which exhibited children's snow clothes. She wanted to purchase a snow suit for her greatniece. When the plaintiff arrived at a point about the middle of the larger or main aisle and opposite the east end of the racks, she was looking and walking towards the goods displayed on the table beyond the smaller aisle. When she reached about the middle of the intersection of the two aisles, a salesgirl employed by the defendant, going south on the smaller aisle, walked into the plaintiff, causing her to fall to the floor, resulting in breaking her right wrist.

The plaintiff's version of this accident is conflicting. She testified, on direct examination, she wanted to see a snow suit, and she did not know there was a smaller aisle before she was struck. She saw no one in the main or larger aisle in which she was walking towards the children's department. She thought when she was "about an arm's length back as she came abreast of the coats", she saw the salesgirl "come out", but what the girl came out of she did not state. There is, however, a wrapping room which opens on the east side of the smaller aisle north of the larger one, but how far north the record does not state. Plaintiff testified the girl was taller than she, was without a coat and hat. She saw the woman coming from her left about five feet away, and she thought she was an employee of the store. She was walking rapidly and hit the plaintiff with so much force that she went down where she was struck, and she did not have time to get out of the way. "She could have stopped if she had seen her maybe one second back, but she did not have time to get out of her way." She stated that she was closer to the rack than the middle of the aisle; the girl was an arm's length when she first saw her and there was not possible time to stop or get out of the way to avoid the accident."

On cross examination she affirmed the truth of her testimony given by deposition —that she was walking in the aisle; had just cleared a center counter which made her practically in the middle of the main aisle; that she was about in the middle of the main aisle when the collision took place. When asked: "Did you see the lady before you collided with her," she answered: "She was just on edge, on the left of my eye; and I could have told you it was a lady; I could have told you she had no coat and hat on; I could have told you she was taller than myself; I could see that out of the corner of my left eye as she came from behind the coat rack." She further testified the salesgirl was in the main aisle right beside her when she first saw her. She could not say whether the girl was running or walking; nor could she say the girl was making steps, because my (the plaintiff's) face was straight ahead; and she never thought of anybody coming on my side. "I told you," plaintiff testified, "I was walking straight ahead until I was conscious that the girl was coming towards me on my left. I saw her out of the corner of my eye." She could not tell how many steps the girl made and she did not watch her while she walked. Asked if there was anything to obstruct her view, she said: "But my head was straight in front of me." She said: "More or less, we were both trying to be on the same spot at the same time." The salesgirl testified she did not see the plaintiff until she was on the floor after the accident. The trial Court permitted the case to go to the jury, a verdict for the defendant was rendered and from judgment entered thereon, the plaintiff appeals to this Court.

Several questions are raised but the main question is whether "due care" to be exercised in a case like this is reciprocal. It is urged that a storekeeper and his employees are under a higher degree of care for the protection of customers from injury in the use of the aisles of a store than a customer is bound to use for the protection of the storekeeper and his employees from injury.

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