Spell v. Mechanical Contractors, Inc. , 261 N.C. 589 ( 1964 )

135 S.E.2d 544 (1964) 261 N.C. 589

Maurice Amos SPELL
v.
MECHANICAL CONTRACTORS, INC.

No. 171.

Supreme Court of North Carolina.

April 8, 1964.

Britt & Warren, Clinton, Jones, Reed & Griffin, Kinston, for plaintiff appellee.

D. Stephen Jones and P. D. Herring, Clinton, for defendant appellant.

SHARP, Justice:

Plaintiff bases his case upon the allegation that the defendant knew, or as a result of its experience in making exvacations, should have known, that the continuous rain had made the fresh dirt in the ditch soft and unstable and that, notwithstanding such knowledge, defendant failed either to barricade or bridge the ditch or to give warning of this unsafe condition. Plaintiff has neither allegation nor proof that the initial construction of the ditch was negligently or improperly done. The sole evidence relating to that construction came from defendant's witnesses and tended to show that the ditch had been properly filled and tamped with care. Nevertheless, if the ditch later became unsafe as the result of a hidden defect, it was the defendant's duty to give warning of it and to take reasonable precautions to protect persons entering and leaving the hospital from injuries arising from the hazard if its agents knew, or in the exercise of reasonable supervision and inspection, should have discovered the peril. Spell v. Smith-Douglas Co., 250 N.C. 269, 108 S.E.2d 434.

However, in this case there is no evidence to sustain plaintiff's contention that a reasonable inspection of the ditch by defendant would have disclosed the soft spot into which he says he mired. Indeed, all the evidence is to the contrary. Defendant's superintendent had inspected the ditch within two hours of the time plaintiff fell and found it safe. One of the plaintiff's witnesses said that "he or anybody else would have thought it could be stepped on in safety." Plaintiff had twice driven his automobile across the ditch and had once walked across the same spot where he later fell. He himself testified that there was nothing to indicate any hazard whatever. By the same token, there was nothing to indicate to defendant any necessity for the barricades, bridging, and warnings which plaintiff complains should have been there but were not.

Admittedly, plaintiff knew from his own experience that rain will soften newly disturbed dirt and that wet dirt is often slick. Defendant was not bound to warn him of an obvious danger. Presley v. C. M. Allen & Co., 234 N.C. 181, 66 S.E.2d 789.

Certainly the plaintiff's evidence that his foot mired ten or twelve inches down in the ditch tends to show that there was a soft spot in the dirt. However, the mere existence of a condition which causes an injury is not negligence per se, and the occurrence of the injury does not raise a presumption of negligence. Welling v. Charlotte, 241 N.C. 312, 85 S.E.2d 379. The doctrine of res ipsa loquitur has no more application to an action against a contractor by a pedestrian who has fallen in a filled ditch in a hospital driveway than it would to an action against a municipality by reason of injuries to a person using its public street. Smith v. City of Hickory, 252 N.C. 316, 113 S.E.2d 557.

Plaintiff's evidence is insufficient to sustain his allegation that a reasonable inspection by the defendant would have disclosed the hidden defect which he contends caused his fall. Spell v. Smith-Douglas Co., supra. Consequently, the motion for judgment of nonsuit should have been allowed.

Reversed.