Walker v. Randolph County

• Decision Date: 29 January 1960
• Docket Number: No. 532,532
• Citation: 251 N.C. 805,112 S.E.2d 551
• Court: North Carolina Supreme Court
• Parties: Emma WALKER v. COUNTY OF RANDOLPH.

Page 551

112 S.E.2d 551

251 N.C. 805

Emma WALKER v. COUNTY OF RANDOLPH.

No. 532

Supreme Court of North Carolina.

Jan. 29, 1960

Archie L. Smith, Asheboro, for plaintiff.

Coltrane & Gavin, Asheboro, for defendant.

DENNY, Justice.

The primary question to be determined on this appeal is whether or not the court committed error in overruling the defendant's motion for judgment as of nonsuit.

In our opinion, when plaintiff's evidence is considered in the light most favorable to her, as it must be on motion for judgment as of nonsuit, it is sufficient to take the case to the jury. Pierce v. American Fidelity Fire Insurance Co., 240 N.C. 567, 83 S.E.2d 493; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Grier v. Phillips, 230 N.C. 672, 55 S.E.2d 485.

We concede that this is a borderline case. In principle, however, we think the evidence falls within the category of the factual situations involved in Dennis v. City of Albemarle, 242 N.C. 263, 87 S.E.2d 561 and Hunt v. Meyers Co., 201 N.C. 636, 161 S.E. 74.

In Dennis v. City of Albemarle, supra, the evidence tended to show that the plaintiff was aware of the maintenance by defendant of the low wire across the highway near his home; that plaintiff, standing at the rear of a truck loaded with hay, with his head above the main load, was on the lookout for the wire, but that he did not know the exact height of the wire; that the wire was difficult to see because of the trees on either side of the highway, and as the truck was driven under the wire, plaintiff's attention was diverted by a workman calling to him from the steeple of a church along the highway. Instinctively, he looked in that direction and spoke to the workman. When he turned back, the wire struck the plaintiff in the mouth, threw him from the truck and caused him to suffer injuries. Bobbitt, J., speaking for the Court, said: 'The general rule, applicable here, is well stated in 65 C.J.S. Negligence § 120, p. 726, as follows: 'When a person has exercised the care and caution which an ordinarily prudent person would have exercised under the same or similar circumstances, he is not negligent merely because he temporarily forgot or was inattentive to a known danger. To forget or to be inattentive is not negligence unless it amounts to a failure to exercise ordinary care for one's safety. Regard must be had to the exigencies of the situation, and the circumstances of the particular occasion. Circumstances may exist under which forgetfulness or inattention to a known danger may be consistent with the exercise of ordinary care, as where the situation requires one to give undivided attention to other matters, or is such as to produce hurry or confusion, or where conditions arise suddenly which are calculated to divert one's attention momentarily from the danger. In order to excuse forgetfulness of, or inattention to, a known danger, some fact, condition, or circumstance must exist which would divert the mind or attention of an ordinarily prudent person; mere lapse of memory is not sufficient, and, if, under the same or similar cirmumstances, an ordinarily prudent person would not have forgotten or have been inattentive to the danger, such conduct constitutes negligence.'' [242 N.C. 263, 87 S.E.2d 565.]

In the case of Hunt v. Meyers Co., supra, the plaintiff's evidence was to the effect that about 12 July 1929 she went to the defendant's store to buy a raincoat and some shoes for her boy; that she was directed to the basement department, which was poorly lighted and dark, where the shoes were kept. That there was an aisle or passageway between the tables on which were shoes, and there was a stool between the tables. The stool could be moved around and was one that the clerk sits on to fit shoes, but was out of place and in the aisle, and in going along the aisle between the two tables to look for the shoes, plaintiff testified in part: 'The next step I took, I caught my foot in this stool that was directly in my path. I was looking for shoes on the table, at the time I fell over the stool. * * * The shoe department is dark, it is under the balcony. No electric lights there. * * * Q. It was a movable stool and you were just along there and happened to hit the stool? A. Well, the stool--you didn't usually put stools in the aisle for people to fall over. Q. I didn't ask you that, you just happened to hit the stool; did you step on the stool? A. No, I did not step on it. Q. You stepped against it? A. The stool was directly in the aisle and I hooked my foot in it. * * * Q. Then it was light enough to see the shoes, the stairway, the clerk, that is right, isn't it? A. Yes, and if the stool had been sitting on the table I would have seen the stool. Q. If you had looked for the stool you could have seen it? A. We were not supposed to go along looking for the stool. Q. You did see it after you stepped on it? A. Yes, I saw the girl pick up the stool and push it under the table. I was looking for that then.' [201 N.C. 636, 161 S.E. 75.]

The defendant, at the close of plaintiff's evidence and at the close of all the evidence, interposed motions for judgment as of nonsuit, which motions were overruled. The case was submitted to the jury on the issues of negligence, contributory negligence and damages, which were answered in favor of the plaintiff. The defendant appealed from the judgment entered on the verdict, and this Court upheld the rulings below.

In order to excuse a person from discovering or seeing what he ordinarily would or should have seen, there must exist some fact, condition, or circumstance which would or might divert the attention of an ordinarily prudent person from discovering or seeing an existing dangerous condition.

In the instant case, the plaintiff was intent on finding a notice of sale at the time she fell down the stairway, which she could have seen had she looked. According to the evidence, however, she...