Colclough v. Great Atlantic & Pacific Tea Company , 2 N.C. App. 504 ( 1968 )

163 S.E.2d 418 (1968) 2 N.C. App. 504

Ella COLCLOUGH
v.
The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc.

No. 6814SC382.

Court of Appeals of North Carolina.

October 9, 1968.

Blackwell M. Brogden, Durham, for plaintiff appellant.

Spears, Spears, Barnes & Baker, by Marshall T. Spears, Jr., Durham, for defendant appellee.

PARKER, Judge.

Defendant was not an insurer of plaintiff's safety while she was on its premises. Smithson v. W. T. Grant Co., 269 N.C. 575, 153 S.E.2d 68. Defendant did owe to the plaintiff, as it did to all of its invitee customers, the duty to exercise ordinary care to keep its premises and the facilities which it furnished for their use in reasonably safe condition. Included in this duty was the obligation to exercise ordinary care in making such inspections as might be reasonably required to ascertain that the premises and facilities were being maintained in reasonably safe condition. Included also was the obligation to give warning of and to eliminate any hidden dangers or unsafe conditions of which defendant knew or in the exercise of reasonable supervision and inspection should have known. Lanier v. Roses Stores, Inc., 2 N.C.App. 501, 163 S.E.2d 416. In the present case plaintiff's evidence, even when considered in the light most favorable to her, is not sufficient to support a permissible inference that defendant breached any duty owed by it to the plaintiff, and the judgment of nonsuit was properly entered.

Plaintiff offered no evidence to show any defect in the construction or mechanism of the grocery cart. She testified that the left wheel—her husband said it was the right wheel—suddenly jammed, causing her injury, and that when she examined the cart shortly thereafter she observed a string wrapped around the inside of the wheel.

Plaintiff's evidence leaves in the realm of sheer speculation the answer to such questions as:

When and how the string became entangled in the wheeel; if this occurred before plaintiff selected and started using the cart, whether for a brief or substantial period of time; whether the string became entangled in the wheel by having been dropped on it from above or by being picked up from the floor; if from the floor, in what manner the string got there and for how long it had been there. On all of these questions there was simply no evidence from which the jury might make even a rational guess as to the answer.

Plaintiff's husband testified that the string "looked like a dirty mop string." Even should it be permissible for the jury to assume from the descriptive words used that the string had actually come from a mop and that in the ordinary course of events no one other than an employee of the defendant would be likely to use a mop in defendant's store, there was still no evidence as to how or when the mop had been so used and no evidence whatsoever that it had been employed in a negligent manner. For the jury to have been able to find from plaintiff's evidence in this case that her injury was caused by the actionable negligence of the defendant would have required the linking together of too long a chain fabricated from speculations linked to inferences drawn from suppositions founded on other speculations.

The case of Lee v. H. L. Green & Co., 236 N.C. 83, 72 S.E.2d 33, relied on by plaintiff, is distinguishable. In that case the plaintiff offered evidence tending to show that the slick substance on the floor of defendant's store which caused her to slip and fall was the same type of substance which had been used to treat the entire floor. A majority of the Supreme Court held that such evidence was sufficient to support the inference that the hazardous condition complained of had been created by or under the direction or sufferance of the defendant in connection with a general application of floor oil on its entire floor. If such permissive inference should be drawn by the jury, it followed as a necessary corollary that knowledge of the hazardous condition so created by defendant would be inferred. In the case now before us there was no evidence sufficient to support an inference that any hazardous condition had been created by or under the direction or sufferance of the defendant and nothing to support an inference that the defendant had any knowledge or in the exercise of due care could have had any knowledge of the existence of any hazardous condition.

Nor does the doctrine of res ipsa loquitur apply. Plaintiff's evidence offered an explanation as to the cause of her injury, to wit: the jamming of the wheel on the cart as a result of the string becoming entangled therein. Nothing in the circumstances disclosed by her evidence would permit as a reasonable inference that this would not have occurred but for some negligence on the part of the defendant. Furthermore, at the time plaintiff's injury occurred the cart was not in the exclusive control of the defendant but for some 20 to 25 minutes had been within the control of the plaintiff.

The defendant's motion of nonsuit was properly allowed and the decision of the superior court is

Affirmed.

BROCK and BRITT, JJ., concur.