Blount v. McCrory Const. Co., 19101

• Decision Date: 04 September 1970
• Docket Number: No. 19101,19101
• Citation: 254 S.C. 608,176 S.E.2d 407
• Court: South Carolina Supreme Court
• Parties: Rutha Mae BLOUNT, Respondent, v. McCRORY CONSTRUCTION COMPANY, Appellant.

Page 407

176 S.E.2d 407

254 S.C. 608

Rutha Mae BLOUNT, Respondent, v. McCRORY CONSTRUCTION COMPANY, Appellant.

No. 19101.

Supreme Court of South Carolina.

Sept. 4, 1970.

William L. Pope, Robinson, McFadden & Moore, Columbia, for appellant.

Theodore W. Law, Jr., Law, Kirkland, Aaron & Alley, Columbia, for respondent.

LITTLEJOHN, Justice:

This action for personal injuries was tried before Judge Timmerman and a jury, resulting in a verdict for the plaintiff in the amount of $15,000 actual damages. During the course of the trial defendant made motions for a nonsuit and for a directed verdict; after the jury verdict, defendant made a motion for judgment notwithstanding the verdict; all motions were refused.

The plaintiff made a motion for a new trial on the ground of inadequacy of the verdict. This motion was granted. Defendant appeals.

The complaint alleges that the defendant, a construction company, was, on the day of the injury, March 14, 1967, engaged in the remodeling of White's department store. The plaintiff was a sales clerk employed in the store. The business of the store continued during the remodeling program. It is alleged that the defendant placed and left a 2 4 board across the bottom of a passageway between the sales area and the office-storage area. Plaintiff was walking from the storage room to the sales floor through the passageway when she tripped and fell, resulting in personal injuries. It is alleged that the defendant was negligent and careless (after evidence was submitted the judge allowed the plaintiff to amend the complaint so as to allege recklessness and wilfulness) in the following particulars:

'(a) In carelessly and negligently constructing said passage way in an unsafe manner, and carelessly and negligently failing to make it safe for employees of said store, who found it necessary to use the passage way.

'(b) In constructing the passage way with an obscure 2 4 board across the bottom of it so as to constitute a trap.

'(c) In maintaining said passage way in a dangerous and unsafe condition.

'(d) In knowing of said dangerous and unsafe condition of the passage way and failing to remedy same and keep it in a reasonable safe manner.

'(e) In failing to erect any warning signs of the dangerous and unsafe condition of the passage way.'

The answer asserts for a First Defense a general denial; for a Second Defense contributory negligence, carelessness and wilfulness on the part of the plaintiff in the following particulars: '(a) In failing to keep a proper lookout in the direction in which she was walking; (b) In proceeding in an area under construction when she knew or should have known that her vision was obscured; (c) In proceeding through an area that she knew or should have known was under construction without taking proper procaution for her own safety; (d) In failing to heed and abide by instructions of her employer;' for a Third Defense, assumption of risk, and for a Fourth Defense that plaintiff has recovered or is entitled to recover under the Workmen's Compensation Act, and such is a bar to recovery against this defendant. This fourth defense was stricken from the answer by Judge Baker. Thereafter an amended answer was served, alleging that plaintiff was barred from recovery because she had entered into an agreement with White's department store and someone representing White's interest. This defense in the amended answer was stricken by Judge Timmerman.

By proper exceptions defendant raises these questions:

1. Was there evidence of actionable negligence on the part of the defendant?

2. Was any duty owed to plaintiff by defendant other than not to wilfully injure her?

3. Did the plaintiff assume the risk incident to walking through the opening?

4. Was plaintiff guilty of contributory negligence and recklessness?

5. Were defenses based on the Workmen's Compensation Act properly stricken from the answer and amended answer?

6. Was it an abuse of discretion to grant a new trial on the ground that the verdict was inadequate?

Under the view we take, plaintiff was guilty of contributory negligence as a matter of law, which bars her recovery. Accordingly, we do not reach the other issues. A review of the evidence, which is not greatly in dispute, becomes necessary for a determination.

The plaintiff, a saleslady 46 years of age, had been working at White's department store about a year and a half in the ladies ready-to-wear department.

White's is a large store located in a shopping center in Columbia. At the time involved the defendant, a construction company, was remodeling the interior and adding another story to the building. During the remodeling the existing sales areas remained open for business. The remodeling included the removal and relocation of walls in areas frequented by store employees, but not by customers.

Before the construction project commenced there existed a wall and a swinging door three feet wide between the ladies ready-to-wear area, where the plaintiff was basically engaged, and the adjoining office-storage room where she was required to go often each day to confer with people in the office, and to get things out of stock. It was a part of the construction plan to close this door and make a solid wall. The swinging door had been removed; the trim of the door had been removed, and vertical studs had been installed within the doorway reducing the opening to a width of two feet; a 2 4 shoe, or footing, had been placed on the floor to support the wall.

At this stage of the construction a representative of the store requested the defendant to leave the wall board off this opening for the time being so that White's employees could use this means of going back and forth to the stockroom and to the office area. The evidence shows that this condition existed from four to ten days, and plaintiff, as well as other employees, walked back and forth through the two foot opening numerous times each day, stepping over and across the 2 4 footing board affixed to the floor.

At about 11 o'clock in the morning of March 14, 1967 plaintiff went from the sales area through the opening to the office area to carry a customer's check to see if the name of the customer was listed among those whose checks were not good. She testified that she fell as she returned through the opening because her heel caught on the 2 4 board. It was her testimony, 'I had the check in front of me studying the check, and I never throught of the board at that time. I was intersted of the board at that time. I was interested further testified that she did not look at the floor.

It is beyond question that plaintiff was completely familiar with the opening and the board. She admitted that she had possed through this opening numerous times every day since it had been changed. In view of the magnitude of the remodeling project she could hardly have been unaware of the charges made and of the additional dangers involved. The swinging door to which she was accustomed was gone; the opening was narrowed from three feet to two feet.

The pictures introduced in evidence clearly show that the entire area was still in the rough; the appearance of the opening was a constant reminder that construction was in progress, that additional dangers existed, and that commensurate care was required.

Assuming that the defendant was culpable we think that its conduct, to the exclusion of all other reasonable inferences, amounted to no more than simple negligence. Simultaneously, we conclude that the evidence shows to the exclusion of all other reasonable inferences, that plaintiff's conduct was negligent and that her conduct contributed to and helped to bring about the injury. She was...