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Schaefer v. Publix Parking Systems

Decided: July 7, 1961.

SCHAEFER
v.
PUBLIX PARKING SYSTEMS ET AL.



Appeal from the Court of Common Pleas of Baltimore City; Tucker, J.

Henderson, Prescott, Horney, Marbury and Sybert, JJ. Prescott, J., delivered the opinion of the Court.

Prescott

The appellant, an elderly woman, sued the appellees, Mayor and City Council of Baltimore and Publix Parking Systems (Publix), for damages for personal injuries sustained as the result of a fall on a sidewalk in Baltimore City caused by an allegedly defective condition in said sidewalk, known to both defendants.

It will not be necessary to state the facts in detail, because there are but two points raised for our determination, one relating to the exclusion of evidence, the other to the court's

instructions to the jury. The accident occurred on December 6, 1958, after dark, when the appellant was proceeding southerly on the sidewalk on the west side of Liberty Street. About 30 feet south of Clay Street, she stepped into a depression or drop in the sidewalk, fell and broke her ankle. The point where she fell was an entrance to the premises occupied by Publix. The case was submitted to a jury, and, after a verdict in favor of the defendants and judgment entered for costs against the appellant, she has appealed.

I

The appellant claims the court erred in "neglecting to include in its charge an instruction requested, relative to the defendants' responsibility to aged or afflicted pedestrians." (Emphasis ours.) In support of this contention, she states: "The Court has on many occasions set out the necessity of not charging all pedestrians with the same responsibilities. It has recognized the need for legal protection for persons who have disabilities," citing Chesapeake & P. Tel. Co. v. Lysher, 107 Md. 237, 68 A. 619. She continues by referring to 141 A.L.R. 722 (n) under a heading "Care required and duty toward pedestrians under disability," and quotes from a case therein mentioned thus: "So, one whose sight is dimmed by age, or a near-sighted person whose range of vision was always imperfect, or one whose sight has been injured by disease, is each entitled to the same rights, and may act upon the same assumption [relying upon the belief that the street is in a reasonably safe condition to walk upon]." After several similar quotations, she concludes this contention by repeating from the case of Fletcher v. City of Aberdeen, 338 P. 2d 743 (Wash.): "The city is charged with knowledge that its streets will be used by those who are physically infirm as well as those in perfect physical condition."

There can be little doubt that all parties to a law suit are entitled to have the jury properly instructed upon their theories of the case. State v. Barlly, 216 Md. 94, 140 A.2d 173. But this statement presupposes that evidence has been adduced to support the theory of any particular party. The trial courts, in presenting their instructions to the juries, are

not required to give the juries merely abstract statements of the law that have no relation to the facts of the case being tried. The difficulty with the appellant's position here -- assuming, without the necessity of deciding, that she would have been entitled to the requested instruction under proper circumstances -- is that there is not a shred of evidence of any physical handicap or disability on her part. Although she was seventy-nine years old at the time of the accident, she testified that no one judged her to be that age because she was so alert and active, and could get around so well. And she testified that even though she used bifocal glasses, her eyes were so good she was capable of threading the finest needle. Under the circumstances, it seems clear that any instruction concerning "the physically infirm," or "pedestrians under disability," would have amounted to no more than a statement of an abstract proposition of law that bore no relation to the issues then before the jury for determination.

The law seems to be well settled that a plaintiff in a negligence case, not too old to be appreciative of danger, is not entitled to a special instruction, either on the question of the defendant's primary negligence or on the question of the plaintiff's contributory negligence, relating to plaintiff's age, in the absence of a showing that his or her faculties, either physical or mental, were impaired in some manner or degree. Orear v. Jacksonville R. & L. Co., 217 Ill. App. 563, 569; Quigley v. Yellow Taxicab Co., 196 N. W. 198 (Mich.); Le Count v. Farrand, 171 A. 623 (Conn.); Becker v. Blum, 194 So. 275 (Fla.); Von Hulse v. ...


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