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September 8, 1956

Mary TRUBIN and Alfred Trubin

The opinion of the court was delivered by: DUSEN

This action, resulting from personal injuries suffered by the wife plaintiff when she fell on the pavement in front of one of defendant's stores in the City of Philadelphia, comes before the court on a motion for new trial filed by plaintiffs after the jury returned a verdict for defendant.

Evidence was introduced at the trial from which the jury could have found that the wife plaintiff was walking south on the 12 to 15 feet wide pavement in front of the store *fn1" on the west side of Broad Street between 4:45 and 5:30 on a late November afternoon. It had been raining hard earlier in the afternoon but was, at that time, merely drizzling and there were very few people on the pavement in front of the store. Carrying a 'very small package,' 'she was walking in kind of a hurry, limping, like. All of a sudden she fell. After she passed the exit door.' She fell when she was about 10 feet from the exit door of the store and five feet from the front of the store building. When the store manager arrived, the wife plaintiff was on her feet and stated that she did not know what caused her to fall. She and the store manager looked carefully for any articles that might be on the pavement, but the only object found was a cash register receipt, which was one inch wide and four inches long and was south of the place where the wife plaintiff fell. The pavement in front of the store where the fall took place was clean and had been swept about 10 minutes before the wife plaintiff fell.

 The wife plaintiff testified that she went into the store, made some purchases, and stepped on a piece of cabbage or lettuce as she stepped out of the exit door. *fn2" However, the jury had to determine which version of the fall was correct and the evidence offered by defendant was ample to support the verdict for the defendant. *fn3"

 1. Alleged error in preventing counsel for plaintiffs from carrying out his announced plan to 'open' rules of law to the jury in his closing argument.

 Counsel for plaintiffs filed with the court during the trial a six-page, unsigned document entitled 'Memorandum of Law' containing 33 numbered paragraphs. At the conclusion of plaintiffs' case on liability, he described this document as a 'Memorandum of Law and Suggested Points for Charge.' Prior to the closing speeches, the court stated it would read three of these paragraphs to the jury; also, that the charge would cover certain enumerated paragraphs and would not cover other paragraphs (at least 10) because the language used was not appropriate for submission to the jury in view of the facts of this case. Counsel for plaintiffs began his closing argument to the jury by saying that he would first 'open' the rules of law *fn4" and continued: 'I would like to state to you at this time that the first compartment that I am going to consider, compartment of law, is * * *.' The court then stated (N.T. 199):

 '* * * I do not want you to talk about any rules of law, because the jury might carry in their memory your statement of the law which I might not agree with, and it is my function to state the law to the jury.'

 There was no error in this statement of the court since it is the court's function to explain the law to the jury and confusion would only result from permitting counsel to argue their views of 'the rules of law' to the jury. *fn5" See Roberts v. Cooper, 1857, 20 How. 467, 481, 61 U.S. 467, 481, 15 L. Ed. 969. This is particularly true where, as in this case, counsel commenced to discuss the law which may be applicable to an issue not supported by the record and thus not proper for the jury's consideration. See Hockaday v. Red Line, Inc., 1949, 85 U.S.App.D.C. 1, 174 F.2d 154, 9 A.L.R.2d 601; Palmer v. Miller, 8 Cir., 1944, 145 F.2d 926, 932.

 2. Alleged errors in charge of the court.

 At the conclusion of the court's charge, counsel for plaintiffs was given the opportunity to make objections to the court's instructions to the jury and only objected to the inclusion in the charge of any language concerning contributory negligence. *fn6" For this reason alone, plaintiffs' complaints about the charge do not constitute reversible error. See Federal Rules of Civil Procedure, rule 51, 28 U.S.C.A.

 A. Plaintiffs' Point For Charge No. 2. *fn7"

 Even if the jury inferred from the wife plaintiff's testimony that there was a quantity of lettuce or cabbage and debris *fn8" outside the exit door at the time of her fall, there is no evidence in the record that this material was there for any period of time or that any material had been found on any other occasions at this spot. *fn9" For this reason, the language in this paragraph had no possible application to the record in this case. A trial judge is not required to instruct the jury concerning a rule of law which is not applicable to the facts of the case. See Susser v. Wiley, 1944, 350 Pa. 427, 431, 39 A.2d 616.

 B. Plaintiffs' Point for Charge No. 4. *fn10"

 Insofar as this point goes beyond such language as the following paragraph of the charge, it has no application to the record in this case:

 'If you find that the presence of refuse matter such as spinach or lettuce or papers was not a chance occurrence, but a repeated condition, then the defendant would have what we call constructive notice of the condition and would be negligent in failing to remove it, and would be liable if that was a substantial factor in causing the plaintiff to fall.' (N.T. 212-3)

 The facts of Markman v. Fred P. Bell Stores Co., 1926, 285 Pa. 378, 132 A. 178, 43 A.L.R. 862, are quite different from the facts presented by this record. In that case, there was evidence that the condition which caused the plaintiff to fall was one that had frequently existed prior to that time and to such a serious extent that the police had been notified about it on prior occasions. *fn11" Also, the case of Morris v. Atlantic & P. Tea Co., 1956, 384 Pa. 464, 121 A.2d 135, presents a situation which is far different factually than that disclosed by this record.

 The language of the charge is in accordance with the Pennsylvania appellate court decisions. See Smith v. American Stores Co., 1944, 156 Pa.Super. 375, 378, 40 A.2d 696; Franz v. Peccalaio, 1947, 356 Pa. 494, 52 A.2d 177; Brannagan v. Great A. & P. Tea Co., 1945, 352 Pa. 18, 41 A.2d 869.

 There is no merit, also, in the other reasons for new trial urged by plaintiffs. The trial judge does not believe that any intentional, inaccurate statement was made by defendant's witnesses. As stated above, the verdict was fully justified by the evidence. *fn12"


 Now, September 8, 1956, plaintiffs' motion for a new trial is denied.

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