Hynes v. Hutzler Brothers Co.

³⁴⁶ Singley, J., delivered the opinion of the Court. In November, 1968 Mrs. Adelaide Hynes, the appellant here and plaintiff below, visited the department store of Hutzler Brothers Company (Hutzler) in Baltimore to purchase a pair of galoshes. Upon arriving in the basement shoe department Mrs. Hynes took a number from a ticket machine, sat down and waited for her number to be called. Becoming impatient, she started to walk to a counter where clerks were wrapping shoes to inquire whether her number had been called.

To reach her destination she walked down an aisle five feet wide, past the ticket machine and a cash register. As Mrs. Hynes approached the ticket machine and cash register she fell and broke her wrist. Mrs. Hynes instituted suit for damages in Baltimore City Court, alleging that the fall had been caused by an unidentified employee of Hutzler’s, who had negligently bumped into her. At the conclusion of her case Dorsey, J., specially assigned, granted Hutzler’s motion for a directed verdict.

From the judgment entered for Hutzler, Mrs. Hynes has appealed. In deciding whether a motion for a directed verdict should have been granted, this Court will consider the evidence in the light most favorable to the party against whom the verdict is asked, Yommer v. McKenzie, 255 Md. 220, 228 , 257 A. 2d 138 (1969). Mrs. Hynes called Mr. Donald Marshall Jones, an employee of Hutzler’s, as her witness and thus “vouche[d] for him as being worthy of credit, and no direct attack upon his veracity should be made by the party who produces him in the absence of surprise, hostility or deceit,” Procter Elec. Co. v. Zink, 217 Md. 22, 32 , 141 A. 2d 721 (1958).

See also, Tie Bar, Inc. v. Shartzer, 249 Md. 711, 714 , 241 A. 2d 582 (1968). His uncontradicted testimony was that he was standing still at the cash register with his back toward the area where Mrs. Hynes had been waiting. He further testified that as Mrs. Hynes walked past him, he turned his head and noticed her falling, and as she fell her foot kicked back and hit the back of his ³⁴⁷ foot. For purposes of dealing with this case we shall assume, without deciding, that it was Mr. Jones with whom Mrs. Hynes collided, despite the fact that she never saw him before she fell, and that Mr. Jones was guilty of primary negligence, and turn to a consideration of whether the evidence established that Mrs. Hynes was contributorily negligent in failing to pay attention to where she was walking.

Mrs. Hynes was asked about her eyesight: “Q. How about as far as your eyesight? “A. It is all right. I have to wear glasses. “Q. Did you have any trouble getting down off of or getting on buses ? “A. No, I don’t. “Q. Up and down stairs ? “A. No. “Q. Do you have any trouble seeing where you are walking? “A. No, I don’t.” Despite the adequacy of her vision, the width of the aisle, and the fact that she must have been walking close to Mr. Jones, Mrs. Hynes was unaware of his presence. “Q. Why did you get up ? “A. To walk over and ask one of the sales people had my number been called and I didn’t hear it. “Q. Okay, I misunderstood. I thought perhaps you weren’t sure of that or whether it had been called and you were getting up. “A. No, I was wondering if it had been called and I wanted to find out. “Q. You wanted to find out where you stood? “A. Exactly. “Q. And who were you going to ask ? “A. The sales people wrapping shoes. “Q. You weren’t going to ask this gentleman who was at the cash register, were you? ³⁴⁸ “A. I didn’t see the gentleman at the cash register. “Q. You didn’t see the man at the cash register? “A. No. “Q. Well, you walked, apparently, very close to him; isn’t.that true ? “A. I don’t know. I was walking across the floor and he bumped into me, but who he was I didn’t know. “Q. Are you aware that there was a man at the cash register ? “A. No. “Q. So as far as you are concerned, whoever bumped you you had not seen before? “A. Not really.

Maybe I glanced at him but my attention was focused on the people who