Klassette v. Liggett Drug Co. Inc

• Decision Date: 30 April 1947
• Docket Number: No. 531.,531.
• Citation: 227 N.C. 353,42 S.E.2d 411
• Parties: KLASSETTE. v. LIGGETT DRUG CO. Inc., et al.
• Court: North Carolina Supreme Court

227 N.C. 353

42 S.E.2d 411

KLASSETTE.

v.LIGGETT DRUG CO. Inc., et al.

No. 531.

Supreme Court of North Carolina.

April 30, 1947.

Appeal from Superior Court, Mecklenburg County; Geo. B. Patton, Special Judge.

Action by Ella Klassette against Liggett Drug Company, Inc., and others to recover for injuries sustained when plaintiff fell on a sidewalk. From a judgment for defendants, plaintiff appeals.

Affirmed.

Civil action to recover damages for personal injury sustained in a fall on street sidewalk allegedly resulting from actionable negligence of defendants.

Plaintiff took voluntary nonsuit as to defendants Blythe & Isenhour.

These facts in respect to the subject of this action on the dates in question appeal to be uncontroverted:

The individual defendants owned the building at the northeast corner of the intersection of Tryon and Trade streets in the city of Charlotte, North Carolina. The owners had leased in writing the ground floor, a part of the basement, and certain space on the second floor of said building to defendants Liggett Drug Company, who then occupied same. On early morning of 17 November, 1943, there was an intense fire in that part of the building so occupied by defendant Drug Company. The fire department of the city of Charlotte extinguished the fire by pumping water on it from three pumps for more than an hour each. The next morning, 18 November, about eleven o'clock, plaintiff slipped and fell as she was walking from the intersection of said streets along East Trade Street, in front of the building, and suffered injury.

Plaintiff alleges in her complaint: that that part of the building covered by the lease to defendant Liggett Drug Company was at the time of her injury in the joint possession and control of the defendants owners and defendant lessee; that "as a result of said fire, and especially as a result of the substance and liquid running out of said building, the sidewalk on East Trade Street adjoining said building became and remained in an oily, greasy and slippery condition, " thereby becoming and remaining "in a dangerous and unsafe condition, " by reason of which she fell and was injured.

Plaintiff also alleges that the defendants owners and defendant lessee were guilty of negligence in that: "(a) They caused and allowed said greasy and oily substances and liquids to escape from said building and run out to, and spread over, the sidewalk on East Trade Street adjoining said building. (b) Thereafter they allowed said substances and liquids to remain on said sidewalk, although they rendered said sidewalk in an unsafe and dangerous condition, (c) Thereafter they took no measures to remedy the dangerous and unsafe condition of said sidewalk, or to guard against the risks and dangers arising from the risks of said greasy and oily substances and liquids thereon, (d) They failed to take any precautions, or to notify persons attempting to use said sidewalk of the dangerous and unsafe condition thereof."

Plaintiff further alleges that "defendant city of Charlotte was guilty of negligence in that it allowed said sidewalk to become and remain in said slippery, unsafe and dangerous condition without taking any steps to remedy same, or to give notice of said condition to persons attempting to use said sidewalk."

Plaintiff further alleges that "as a proximate result of the negligence of the defendants hereinbefore alleged, the plaintiff received severe, painful and permanent injuries, etc."

Defendants owners, lessee and city, severally answering, deny in material aspect the foregoing allegations of the complaint, and severally plead the contributory negligence of plaintiff in bar of her recovery in this action.

Plaintiff offered evidence tending to show these facts pertaining to the scene of her fall and injury: The intersection of Tryon Street, which runs generally north and south, and Trade Str«et, which runs east and west, is known as the Square in the city of Charlotte. The Liggett Drug Company building. I was up town shopner of the Square, with frontage on both Tryon and Trade streets. The sidewalk on the north side of Trade Street where plaintiff fell "coming from the Square toward Belk's is slanting * * * down hill, " and is fairly wide.

Plaintiff, as witness for herself, testified in pertinent part: "On November 18, 1943, I had a fall up there on the sidewalk on Trade Street next to the Liggett Drug Company building. It was up town shopping * * * walking down Trade toward Belk's from Tryon * * * going east on Trade * * * this side of where the Duke Power Company had their offices down stairs, and there is also a flight of steps there. Well, I fell this side of the steps and * * * of the Duke Power Company's office down in the basement of Liggett's * * * my right foot slipped * * * It was a clear sunny day * * * about 11:15 or 11:20 * * * I noticed that the sidewalk was wet because every one was walking along there, and that's the reason I was walking along there because it was wet and I didn't have anywhere else to walk. It was wet all along there. There was something coming out of the building. It was running out from under the doors of the building down the steps on to the hill. Before I fell I did not notice that there was any substance there other than water, because I saw everyone else was walking along there * * * I had gotten past the front door of Liggett's when I fell * * * about to the rear of the store if I remember correctly * * * When I fell I got some of the dampness or wet or moisture on my clothes * * * I was dismissed from the hospital about 3 o'clock, but I had to be taken home in an ambulance * * * My husband * * * got in touch with my mother * * * she got there between three and three thirty * * * I had on the same clothes that I had on when I fell. She helped me remove them * * * With respect to pedestrian travel at this place where I fell, that is a congested part of the city. It was just a few feet from the Square that I fell * * * I know that the place where I fell was wet. At the time I fell I did not make any examination to see whether there was anything there besides water. Later on I made some examination of my clothes that I had on at the time I fell. That was when I undressed after I was taken home. The clothes were then in the same condition as they were right after I fell. On that examination I found that they were greasy. They had a greasy substance on them, something which made it impossible for me to use them any more."

Then on cross examination, plaintiff testified: " * * * I got uptown * * * around 10 o'clock. I had been shopping * * * and I was starting down there to Belk's. I wasn't uptown on the 17th of November. On the 18th * * * in going on to the Square I passed right in front of Liggett's on Tryon Street. The sidewalk on Tryon Street was not blocked when I passed there on the morning of the 18th. I observed that there had been a fire there. The glass front on the Tryon Street side of Liggett's was all broken out and the door to Liggett's Drug Store, which door was at the corner of Tryon and Trade, was broken out. I passed that door in turning the corner to go down to Belk's. There was something running under that door. The frame of the door was still there. The glass was gone * * * there were a whole lot of people there. I was sort of outside to the sidewalk and there were a whole lot of people between me and the building * * * looking in * * * themselves. I noticed the wall was blackened from fire and that there had been a bad fire there. I could see that the interior of the building was blackened and burned out. I do not know what was coming under the door, but it was something in liquid form. It was running down the hill. It was going down those steps on to the sidewalk. I had to walk through it. I didn't know how deep it was but all I know is it made the sidewalk wet. There was none of that liquid on Tryon Street. If I had been going that way I could have crossed Trade over to Kress's. There wasn't anything to keep me from crossing Trade. There is a sidewalk on the first block of East Trade between Tryon and College on the south side of Trade, that is, on the opposite side from Belk's. I could have gone across Trade and down to College Street and up to Belk's without walking through the water, but you see I saw everyone else walking along there so I thought it was safe--but I didn't--when I passed the door at the entrance at Liggett's * * * I wasn't walking fast. I did not slow down * * * I just kept walking." To each of these questions, "Now you walked right through the water or liquid or whatever it was, coming out of the drug store? * * * And continued to walk right on down the sidewalk?" she answered, "Yes, sir."

Then, continuing, the plaintiff testified: "I was thoroughly familiar with that corner. I had been by there hundreds of times. I know where the Duke Power Company bus headquarters was in the basement of the Liggett building. That was down toward the rear end of the Liggett building and below the Liggett building, there was a stairway running up between that building and Smith's jewelry store. I had not passed the Duke Power Company when I fell * * * this sideof the flight of steps * * *." The witness testified to the effect that the liquid coming out of the front door of Liggett's flowed down the sidewalk as far as the Duke Power Company office. Then she was asked these questions, to which she answered as shown: "Q. In other words, you walked in this liquid all the way from the corner down to where you fell? A. That's right, it was slick all the way down that hill. Q. It was slick all down that hill? A. Don't get me wrong. I don't mean it was slick where I was walking, but it was wet all along there, because that's the reason I walked in it." Then in describing her shoes she said "the bottom of the shoe is flat and the heel is above the sole, " and that she "walked through this water or liquid all the way from the corner down...