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.
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.
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.
Even if the jury inferred from the wife plaintiff's testimony that there was a quantity of lettuce or cabbage and debris
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.
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.
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.
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.
Now, September 8, 1956, plaintiffs' motion for a new trial is denied.