Waldrup v. Carver , 240 N.C. 649 ( 1954 )

83 S.E.2d 663 (1954) 240 N.C. 649

H. H. WALDRUP
v.
A. G. CARVER and the Estate of H. G. McKenzie, First National Bank & Trust Company, Trustee.

No. 92.

Supreme Court of North Carolina.

September 29, 1954.

Cecil C. Jackson and L. C. Stoker, Asheville, for plaintiff appellant.

Williams & Williams, Asheville, for defendant appellees.

BARNHILL, Chief Justice.

If it was the duty of defendants to repair the grill work in the upper half of the door to the elevator shaft located on the first floor of their office building, we are unable to perceive that a breach of this duty constituted one of the proximate causes of the unfortunate mishap described in the complaint. The hole in the grill work was without capacity to cause injury to any one. While, perhaps, it created a continuous and continuing temptation to occupants of the building on returning to their offices at night to take the easy way rather than to climb the steps, it could do no harm to any one. It merely constituted a passive condition. Before it could be connected even remotely with an incident such as the one here described, it had to be knowingly and deliberately activated and put to use by the injured party.

However, we need not and do not rest decision on the question whether the state of disrepair of the grill work of the door existing over a period of time, nothing else appearing, constitutes actionable negligence. We will leave that question open until it is brought more acutely into focus.

The rule which controls decision on a motion for a judgment of involuntary nonsuit for that it is made to appear that, as a matter of law, plaintiff was guilty of negligence which proximately contributed to his own injury has been stated and restated in our reports so frequently that it has become axiomatic. Any further restatement or elaboration at this time would constitute needless repetition. Suffice it to say that upon the facts appearing in this record, any reasonable mind would reach the inescapable conclusion that plaintiff's unfortunate injury resulted from his own failure to exercise ordinary care and precaution for his own safety.

When the plaintiff left the building he did not turn off the light in the elevator. When he returned, there was no light in the elevator shaft where it would be if the elevator was still at that floor. This alone was sufficient to put him on notice conditions had changed since he left the building. When he returned, the lobby was in a safe condition. There was no state of disrepair or latent danger calculated to cause him injury. A light was available to him. The use of the elevator by tenants at night was at most permissive. Knowing the conditions and being fully aware it was so dark he could not see, he found his way to the elevator and opened the door. Here again the existing physical conditions gave him warning of his peril. He found no elevator door which had to be opened before a passenger could enter the elevator. He then reached in the shaft without waiting for the hall light to be turned on to switch on the elevator light and either stepped or lost his balance and fell into the elevator shaft to the basement.

Thus this case comes squarely in the line of decisions represented by Scott v. Western Union Telegraph Co., 198 N.C. 795, 153 S.E. 413, and McInturff v. St. Louis Union Trust Co., 201 N.C. 16, 158 S.E. 547, which control decision here. Indeed the evidence of plaintiff's want of due care for his own safety is more persuasive than are the facts in either the Scott or the McInturff cases.

The mishap was unfortunate. That plaintiff has had to suffer the ill effects of his injuries is to be regretted. Yet he cannot hold these defendants to a higher degree of care for his safety than he exercised in his own behalf. The negligence, if any, of defendants was passive; that of plaintiff was active. The defendants permitted a condition to exist which made it possible for plaintiff to create the hazard which caused his injuries, but he, by his own conduct, created the hazard. He must suffer the consequences.

The judgment of the court below is

Affirmed.