Everhart v. LeBrun, 8018SC981

• Decision Date: 19 May 1981
• Docket Number: No. 8018SC981,8018SC981
• Citation: 52 N.C.App. 139,277 S.E.2d 816
• Court: North Carolina Court of Appeals
• Parties: Allen W. EVERHART v. Sidney LeBRUN, Trustee for Royal Villa of Greensboro, Inc., Debtor.

Page 816

277 S.E.2d 816

52 N.C.App. 139

Allen W. EVERHART v. Sidney LeBRUN, Trustee for Royal Villa of Greensboro, Inc., Debtor.

No. 8018SC981.

Court of Appeals of North Carolina.

May 19, 1981.

Charles M. Ivey, III, Ivey & Ivey, Greensboro, for plaintiff-appellee.

J. B. Winecoff and Harry Rockwell, Greensboro, for defendant-appellant.

WHICHARD, Judge.

Defendant first assigns error to the trial court's denial of his motions for directed verdict and for judgment notwithstanding the verdict. It contends evidence of its negligence was insufficient to go to the jury or, in the alternative, that the evidence established contributory negligence as a matter of law.

Motions for directed verdict pursuant to G.S. § 1A-1, Rule 50(a) and for judgment notwithstanding the verdict under G.S. § 1A-1, Rule 50(b) test the legal sufficiency of the evidence to take the case to the jury and support a verdict for the party opposing the motion. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977). On defendant's motion for a directed verdict, plaintiff's evidence must be taken as true; and all the evidence must be considered in the light most favorable to plaintiff, giving him the benefit of every reasonable inference. Hunt v. Montgomery Ward and Co., 49 N.C.App. 638, 272 S.E.2d 357 (1980). A directed verdict is not properly allowed "unless it appears, as a matter of law, that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish." Graham v. Gas Co., 231 N.C. 680, 683, 58 S.E.2d 757, 760 (1950). Under these principles defendant is not entitled to a directed verdict or to judgment notwithstanding the verdict unless plaintiff has failed as a matter of law to establish the elements of actionable negligence or unless the evidence, viewed in the light most favorable to plaintiff, shows contributory negligence as a matter of law.

Plaintiff introduced evidence tending to show the following: On 2 February 1978 approximately 1.5 inches of snow fell in the Greensboro area. On 5 February 1978, after two days of freezing weather with no precipitation, there were further traces of snow. During the evening approximately two hundredths of an inch of snow fell. On that evening plaintiff, a guest of defendant motel, attended a dance there sponsored by a cosmetology convention. When plaintiff arrived he noticed snow and ice all over the motel parking lot. Although he parked on the northeast side of the motel, he determined that the better way to enter was through the east entrance. Shortly after midnight plaintiff left the motel through the north exit with one of his employees. They had to walk carefully because of the ice and snow at the entrance. Plaintiff then had to return to the motel to get the key to a car owned by another employee. On his second trip out the north exit he stepped in an icy hole which was covered with snow, and he tripped and fell. Plaintiff testified there was no evidence that defendant had taken steps to remove any of the accumulated ice and snow. As a result of his fall plaintiff suffered a fractured wrist necessitating his wearing a cast for six and a half weeks. The wrist is now permanently deformed.

Viewing this evidence in the light most favorable to plaintiff, we find it sufficient to require jury determination of whether defendant failed to maintain its premises in a reasonably safe condition and, if so, whether this failure was the proximate cause of plaintiff's injuries. Thus, the court properly denied defendant's motions insofar as they related to the issue of its negligence.

Defendant's second contention in support of these motions is that plaintiff's failure to use a safer alternative route was contributory negligence as a matter of law. "This issue, too, 'necessitates an appraisal of (the) evidence in the light most favorable to (plaintiff).' " Hunt, 49 N.C.App. at 642, 272 S.E.2d at 361. While a plaintiff may be contributorily negligent by pursuing a dangerous route when a less dangerous one is available, when conflicting contentions are both supported by permissible inferences from the evidence the inferences are for the jury, not for the court. Broadway v. King-Hunter, Inc., 236 N.C. 673, 73 S.E.2d 861 (1953). The evidence here on contributory negligence was in conflict. While plaintiff testified that upon arrival he selected the east entrance because it appeared safer at that time, there is no evidence that it was, in fact, safer, then or later. Before his fall plaintiff and one of his employees had used the northeast entrance, the one closer to his automobile, without mishap. Further, there was evidence that snow and ice were scattered throughout defendant's parking areas. Plaintiff testified that he was attempting to select his steps carefully and that the place he stepped off "was the safest place (he) could see." Viewing the evidence in the light most favorable to plaintiff, whether plaintiff acted unreasonably in choosing the north entrance was a question of fact for the jury. Defendant's first assignment of error is overruled.

Defendant next assigns error to the failure of the trial court to recapitulate the evidence to the extent necessary to explain the law arising thereon as required by G.S. § 1A-1, Rule 51(a). After summarizing the evidence the court gave the following instructions concerning the issue of negligence:

As to the first issue: "Was the plaintiff injured and damaged by the negligence of the...