Maness v. Fowler-Jones Construction Company , 10 N.C. App. 592 ( 1971 )

179 S.E.2d 816 (1971) 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 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.

Certiorari Denied by Supreme Court May 4, 1971.

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by a motion for judgment of involuntary nonsuit under the statute formerly codified as G.S. § 1-183 (which is now repealed) namely, whether the evidence was sufficient to entitle the plaintiff to have the jury pass on it.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 occasion, or creates the relationship which furnishes the occasion, for the tort." Toone v. Adams, 262 N.C. 403, 137 S.E.2d 132; Pinnix v. Toomey, 242 N. C. 358, 87 S.E.2d 893. The contract established defendant's control over the premises during the progress of construction and defendant's obligations with respect thereto. The law imposed on defendant the obligation to perform its contract with due care. Toone v. Adams, supra. Plaintiff, an employee of a subcontractor working on the building was an invitee on the premises. Defendant's duty to plaintiff, therefore, was one of due care under all the circumstances. Spivey v. Babcock and Wilcox Company, 264 N.C. 387, 141 S.E.2d 808.

On the issue of defendant's actionable negligence, it is clear that defendant knew of the existence of the hole and that its existence constituted a hazard; defendant admitted in its answer that it "had covered a duct opening in the concrete slab of the second floor with a sheet of plywood and had piled aluminum bucks on top of the plywood to act as a warning and barrier to use of the plywood surface." Under the evidence it was for the jury to determine whether this was a sufficient precaution to fulfill defendant's obligation to use due care. While the evidence was in certain respects conflicting, it was such that the jury could legitimately find: that defendant had failed to nail or otherwise secure the plywood in place; that no notice or warning of the presence of the hole was posted and no barricade erected around it other than the loose sheet of plywood with the aluminum bucks or sections of dismantled scaffolding piled on top; and that these did not in themselves suggest the presence of the hole or the purpose which, according to defendant's answer, they were intended to serve. (There was evidence that a four by eight foot plywood sheet is at times used as a scaffold platform and that in dismantling a scaffold the plywood is first taken off and laid on the floor and the scaffold then dismantled and placed on the plywood, "[s]o that when it is completely disassembled everything [is] laying on top of the plywood to make a pile." Plaintiff himself testified he has seen the "window wall" men working on top of this same scaffold when it was erected.) Under these circumstances the plywood with its pile of scaffolding on top may well have constituted, as appellee now argues, more of a trap than a warning or protection against danger. In any event, under the evidence it was for the jury to determine if defendant failed to exercise due care with reference to the hole and if such failure was a proximate cause of plaintiff's injuries.

On the issue of plaintiff's contributory negligence, while there was certainly evidence from which the jury could have found plaintiff negligent, in our opinion the evidence was not such as to compel that finding as a matter of law. While plaintiff had had twenty-one years' experience in the construction industry and knew that it was frequently necessary that holes be left in concrete floors during the course of construction, the evidence in this case would not compel a finding that at the time he fell he knew or in the exercise of due care should have known of this particular hole. He had previously had occasion to examine plans for the building which showed this hole, but these were included in architects' drawings consisting of approximately 50 sheets, and the work on which plaintiff and the crew under his direction were engaged at the time of his injury did not at that time require his attention to be centered on the duct openings. His crewman had just completed work on the third floor and moved down to the second floor, and there was no similar hole or opening on the floor above. While, as appellant argues, there may have been other, safer, procedures which plaintiff could have followed in assisting his crewman, this would not as a matter of law require a holding that he was negligent in doing what he did. With reference to the issue of contributory negligence, as with the issue of negligence, we cannot say that only one conclusion can reasonably be drawn. Determination of both issues was properly for the jury. Spivey v. Babcock and Wilcox Company, supra.

No error.

MALLARD, C. J., and GRAHAM, J., concur.