Jenkins v. Great Atlantic and Pacific Tea Company, Civ. A. No. 7383.

• Court: U.S. District Court — District of Maryland
• Citation: Jenkins v. Great Atlantic and Pacific Tea Company, 128 F.Supp. 169 (D. Md. 1955)
• Decision Date: 10 February 1955
• Docket Number: Civ. A. No. 7383.
• Parties: Margaret JENKINS v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, a body corporate.

128 F. Supp. 169

Margaret JENKINS v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, a body corporate.

Civ. A. No. 7383.

United States District Court, D. Maryland, Civil Division.

February 10, 1955.

Joseph Kolodny, Baltimore, Md., for plaintiff.

Wm. B. Kempton, Barton, Wilmer, Bramble, Addison & Semans, Robt. E. Coughlan, Jr., Baltimore, Md., for defendant.

CHESNUT, District Judge.

This is an action by the plaintiff, a customer of the defendant, to recover damages for personal injuries sustained by her in consequence of falling over a boy's express wagon just outside the front exit door from the defendant's premises. The small wagon was not within the store building but was outside on the public sidewalk used for pedestrian traffic, and also for entrance into and exit from the defendant's premises which were leased to the defendant by the owner.

At the conclusion of the plaintiff's case, and again after some little further testimony by the defendant, counsel for the latter requested in writing an instructed verdict for the defendant on the grounds (a) that there was no evidence legally sufficient to entitle the plaintiff to recover; (b) that by the uncontradicted evidence the wagon was not owned or used by the defendant or its employees and was not under the control of the defendant or its employees and (c) that under the uncontradicted evidence the plaintiff was guilty of contributory negligence. As the whole evidence occupied a comparatively quite short time it was not then practicable for the court to make a careful examination of the Maryland cases applicable to the subject matter, and the case was submitted to the jury on a very narrow issue. After some hours of deliberation the jury was unable to agree and was discharged. The defendant thereafter and in due time filed a motion for judgment in favor of the defendant in accordance with rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Counsel have been heard upon this motion, which, after careful consideration I have concluded must be granted.

The substance of the evidence in the case was this. The defendant's grocery store was on Fort Avenue in Baltimore City. It was of moderate size, in the middle of the block, and had two doorways each consisting of panelled glass with customary frame, one opening inwards from the sidewalk marked "In" and the other of similar size marked "Out". Where the double doors opened outwards onto the sidewalk, in both cases the bottom of the doors being flush with the well-paved concrete sidewalk.

The plaintiff had for some years previously off and on been a customer at this store and was familiar with the fact that from time to time small boys with their express wagons waited in front of or near to the defendant's store for the purpose of soliciting employment to carry merchandise bought by the customers of the store to their homes generally nearby for some small compensation. When the plaintiff entered the store on the date of her accident in the afternoon of October 24, 1953, she saw some of these boys with their wagons there. It was broad daylight at the time. After she had made some purchases and was carrying her parcels under each arm, she left the store by the door marked "Out" and, according to her own evidence, immediately tripped over a boy's small wagon just after she had emerged from the doorway. A clerk whose desk on the inside of the store was near the doorway, noticed through the glass panel that the plaintiff had fallen and called the manager of the store who at once went to see if the plaintiff had been hurt and if so offered to take her home; but the plaintiff said she had been hurt and wished to go at once to a hospital. Some one called a police ambulance which promptly came and took her to the hospital where it was found that she had fractured one or more bones in her leg for which she was hospitalized for a time but made a fairly normal recovery in due course. Her doctor testified that as a result of her accident she had a ten per cent. disability of the right ankle. Subsequently on April 26, 1954 she brought this suit against the defendant to recover damages for the injuries sustained.

The plaintiff also called as her witness the police officer, James Miller, who had summoned the ambulance, who testified on direct or cross-examination to the effect that on a number of occasions he had been instructed by his superior officer to chase the boys away from around the defendant's store, and that he on each occasion had done so but that as they were quite young boys it was not practicable for him in the performance of his duties as a patrolman to keep them away because as soon as he was away from the place they would generally soon return. He also testified that after the plaintiff had been taken to the hospital he went to confer with her in his duty of investigating the nature and cause of the accident, and was told by her at the time, although she was still suffering discomfort from her fall, that she had fallen over the wagon after she had taken about five steps.

The plaintiff further called as a witness James Duckett who was the manager of the defendant's store and had been acting in that capacity for about three years past. He stated that the defendant had never engaged or voluntarily permitted the boys to be present with their wagons but that their presence was in the nature of an annoyance or nuisance and that on many occasions, sometimes two or three times a week, he had telephoned the police station to send an officer to drive the boys away. The plaintiff offered no evidence to the contrary and there was no evidence to show that the defendant or its employees had ever employed or paid the boys or in any way encouraged them to be there. He, however, said that he understood they frequently made considerable small sums of money for their services to customers in carrying merchandise home for them. I understand the practice is not uncommon at other "cash and carry" grocery stores in Baltimore; but I do not consider that as material to the decision in this case.

The plaintiff offered no evidence tending to show that the particular wagon over which the plaintiff tripped or fell on going through the exit door had been there any length of time prior to the accident and there was no evidence to show...