Maness v. Fowler-Jones Const. Co., FOWLER-JONES

• Decision Date: 31 March 1971
• Docket Number: No. 7121SC137,FOWLER-JONES,7121SC137
• Citation: 179 S.E.2d 816,10 N.C.App. 592
• Parties: Jack R. MANESS v.CONSTRUCTION COMPANY.
• Court: North Carolina Court of Appeals

Page 816

179 S.E.2d 816

10 N.C.App. 592

Jack R. MANESS v. FOWLER-JONES CONSTRUCTION COMPANY.

No. 7121SC137.

Court of Appeals of North Carolina.

March 31, 1971 Certiorari Denied by Supreme Court May 4, 1971.

Hatfield, Allman & Hall, by Roy G. Hall, Jr., and Weston P. Hatfield, Winston-Salem, and DeLapp, Ward & Hedrick, by Hiram H. Ward, Lexington, for plaintiff appellee.

Deal, Hutchins & Minor, by John M. Minor and William K. Davis, Winston-Salem, for defendant appellant.

PARKER, Judge.

In apt time at the close of plaintiff's evidence and again at the close of all evidence defendant moved for a directed verdict in its favor on the grounds (1) that the evidence was insufficient to establish actionable negligence of the defendant and (2) that the evidence established plaintiff's contributory negligence as a matter of law. Defendant also in apt time moved that the verdict be set aside and that judgment notwithstanding the verdict be entered in accordance with its prior motions for a directed verdict. The only assignments of error brought forward by this appeal are directed to the denial of these motions and to the signing and entry of the judgment.

Our Supreme Court has held that a defendant's motion for a directed verdict in a jury trial made under Rule 50(a) of the Rules of Civil Procedure presents substantially the same question as was formerly presented by a motion for judgment of involuntary nonsuit under the statute formerly codified as G.S. § 1--183 (which is now repealed) namely, whether the evidence was sufficient to entitle the plaintiff to have the jury pass on it. See opinion of Bobbitt, C.J., in Kelly v. International Harvester Company, N.C., 179 S.E.2d 396, filed 10 March 1971. In determining this question, all evidence which supports plaintiff's claim must be taken as true and viewed in the light most favorable to him, giving him the benefit of every reasonable inference which may legitimately be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in his favor. Musgrave v. Mutual Savings & Loan Ass'n, 8 N.C.App. 385, 174 S.E.2d 820. The same test is to be applied in passing on a motion under Rule 50(b)(1) for judgment notwithstanding the verdict. Horton v. Iowa Mutual Insurance Co., 9 N.C.App. 140, 175 S.E.2d 725. Thus, the only questions presented by this appeal are whether, when the evidence is viewed in the manner above prescribed, it was sufficient to sustain a jury finding of actionable negligence on the part of the defendant, and if so, whether it so clearly established plaintiff's own negligence as one of the proximate causes of his injury that no other reasonable inference may be drawn. While the evidence was conflicting on material matters, in our opinion it was such that opposing inferences could legitimately be drawn both on the question of defendant's actionable negligence and on the question of plaintiff's contributory negligence. This makes both issues matters which should properly be decided by the jury and we find no error in the trial court's denial of appellant's motions.

Appellant does not question that it owed to plaintiff a duty to exercise due care at the time when and with respect to the premises where plaintiff was injured. Appellant stipulated that it was the Contractor for construction of the building, having contracted with the Board of Commissioners of Forsyth County. The written contract, which was admitted in evidence, contained the following:

'The Contractor shall take all precautions necessary for the safety of employees on the work and shall comply with all applicable provisions of Federal, State and Municipal safety laws and building codes to prevent accidents or injury to persons on, about, or adjacent to the premises where the work is being performed. The Contractor shall erect and properly maintain at all times as required by the conditions, progress of the work and the Architect-Engineer, all safeguards necessary for the protection of workmen and the public and shall post danger signs warning of hazards created by construction operations.'

Plaintiff's action in the present case lies in tort and defendant's contract for the construction of the building 'merely furnishes the...