Hunt v. Montgomery Ward and Co., Inc., 8019DC361

• Citation: 272 S.E.2d 357,49 N.C.App. 642
• Decision Date: 02 December 1980
• Docket Number: No. 8019DC361,8019DC361
• Court: Court of Appeal of North Carolina (US)
• Parties: Barner A. HUNT, Personal Representative of the Estate of Jacqueline W. Hunt, Deceased, v. MONTGOMERY WARD AND COMPANY, INC.

Page 357

272 S.E.2d 357 49 N.C.App. 642 Barner A. HUNT, Personal Representative of the Estate of
Jacqueline W. Hunt, Deceased,
v.
MONTGOMERY WARD AND COMPANY, INC. No. 8019DC361. Court of Appeals of North Carolina. Dec. 2, 1980.

Pollock, Fullenwider & Cunningham, P. A. by Bruce T. Cunningham, Jr., Southern Pines, for plaintiff-appellee.

Frazier, Frazier & Mahler by Harold C. Mahler and Patrick A. Weiner, Greensboro, for defendant-appellant.

WHICHARD, Judge.

Defendant assigns error to the trial court's denial of its motions for directed verdict at the conclusion of plaintiff's evidence and at the conclusion of all the evidence, and the denial of its motion for judgment notwithstanding the verdict. Defendant contends the plaintiff has shown no evidence of actionable negligence on defendant's part; and that if actionable negligence was shown, by his own evidence plaintiff established his decedent's contributory negligence as a matter of law.

A motion for directed verdict under Rule 50(a) of the North Carolina Rules of Civil Procedure, G.S. 1A-1, and a motion for judgment notwithstanding the verdict under G.S. 1A-1, Rule 50(b) present the question whether the evidence was sufficient to entitle the plaintiff to have a jury pass on it. Dickinson v. Pake, 284 N.C. 576, 583, 201 S.E.2d 897, 903 (1974); Kelly v. Harvester Co., 278 N.C. 153, 157, 179 S.E.2d 396, 397 (1971). The question of sufficiency

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of the evidence to send a case to the jury is a question of law. The question presented to the appellate court in reviewing the decision of the trial court "is the identical question which was presented to the trial court by defendant's motion ..., namely, whether the evidence, when considered in the light most favorable to plaintiff, was sufficient for submission to the jury." Kelly, 278 N.C. at 157, 179 S.E.2d at 397. The trial court should deny motions for directed verdict and for judgment notwithstanding the verdict when, viewing the evidence in the light most favorable to the plaintiff and giving the plaintiff the benefit of all reasonable inferences, it finds " 'any evidence more than a scintilla' to support plaintiff's prima facie case in all its constituent elements." 2 McIntosh, North Carolina Practice and Procedure 2d, § 1488.15 (Phillips Supp.1970); see [49 N.C.App. 645] also Gwyn v. Motors, Inc., 252 N.C. 123, 127, 113 S.E.2d 302, 305 (1960). In a negligence case, "(i)f the evidence in the light most favorable to the plaintiff, giving him the benefit of all permissible inferences from it, tends to support all essential elements of actionable negligence, then it is sufficient to survive the motion to nonsuit." Lake v. Express, Inc., 249 N.C. 410, 412, 106 S.E.2d 518, 520 (1959). ¹

Applying these well-established principles to the evidence adduced at the trial of this case, we find the following:

Defendant's witness, Ronald Dance, an employee in the major appliance section of defendant's store testified that defendant's employees had prepared a sign containing the word "HOT" which was "placed on the middle of the cooking surface of the stove" when the stove had been demonstrated. Viewing this evidence in the light most favorable to the plaintiff, we believe the jury could have found therefrom that the defendant had the requisite notice that the stove posed a potential hidden danger or unsafe condition to its patrons. "The inviter is charged with knowledge of an unsafe or dangerous condition on his premises during business hours created by his own negligence or the negligence of an employee acting within the scope of his employment, or of a dangerous condition of which his employee has notice." Long v. Food Stores, 262 N.C. 57, 60, 136 S.E.2d 275, 278 (1964) (emphasis supplied).

The witness Dance further testified that at the time plaintiff's decedent was injured the " 'HOT' sign" was located on the "back guard" of the stove where defendant's employees customarily placed it "after the stove cools down." He testified that "(t)here (were) no locking devices on (the stove's) knobs to prevent them from being turned on nor was there any tape or other protective device across the knobs when the stove was not being demonstrated." The decedent's daughter, Tricia Burnett, testified for the plaintiff that she "did not see any signs or notices indicating not to touch the stove" at the time of her mother's injury. She also testified that "(t) here were no ropes and cords surrounding the stove"; that she [49 N.C.App. 646] "saw no employees of the store in the immediate area of the stove"; and that she did not recall "any kind of indication of warning." Viewing this evidence in the light most favorable to the plaintiff, we believe the jury could have found therefrom that even though defendant had notice, as set forth above, of the potential danger posed to its patrons by the stove, it failed to exercise ordinary care to keep its premises in a reasonably safe condition with regard to display of the stove. The jury also could have found from this evidence that defendant failed to exercise ordinary care to warn its patrons of the potential hidden danger or unsafe condition posed by the display of the stove. While the proprietor of a store is not an insurer of the safety of customers on the premises, "he does owe to them the duty to exercise ordinary care to keep the premises in a reasonably...