Mazzacco v. Purcell ( 1981 )

HEDRICK, Judge.

From his complaint, brief, and oral argument, we understand plaintiffs theory of his case to be that defendants were negligent when they failed to warn plaintiff of a dangerous situation which they created by tying one end of a rope to that portion of the tree being cut, passing the rope over the limb of a second tree, tying the other end of the rope to the trunk of a third tree, and pulling the slack in the rope between the second and third trees into a “bow like configuration” so that plaintiff, being on the “inside” of the rope, was propelled thirty to forty feet to his injury when the portion of the tree being cut fell and jerked the rope “taut.” Before we, or a jury, could determine whether plaintiff’s theory is even physically plausible, it would be essential to know the total length of the rope, the distances between each of the three trees, the position of the trees in relation to each other, the height of the limb on the second tree over which the rope was passed, the direction in which the rope was being pulled between the second and the third tree, the amount of slack in the rope between the second and third trees, and the direction plaintiff was propelled in relation to the three trees. While the evidence tends to show that the total length of the rope to be approximately 120 feet, the absence of any evidence as to the remaining essential facts enumerated above renders plaintiffs theory one of mere speculation and conjecture. Indeed, the only matter in the record before us which discloses the manner in which the rope was strung from the portion of the tree being cut, over the limb of a second tree and tied to the trunk of a third tree is in defendants’ admission to paragraph four of the complaint. Our examination of the record discloses nothing supporting plaintiffs “bow like configuration” theory. Obviously there is evidence in the record tending to show that plaintiff was thrown through the air thirty to forty feet receiving injuries when he struck the pine tree and fell to the ground. However, negligence cannot be presumed from the mere occurrence of an injury. Spell v. Mechanical Contractors, Inc., 261 N.C. 589, 135 S.E. 2d 544 (1964); Cagle v. Robert Hall Clothes, 9 N.C. App. 243, 175 S.E. 2d 703 (1970).

Assuming arguendo that plaintiff was an invitee on defendants’ premises and that defendants therefore owed him a duty of ordinary care to maintain the premises in a safe condition and to warn of hidden dangers that have been or could be discovered by reasonable inspection, Husketh v. Convenient Systems, Inc., 295 N.C. 459, 245 S.E. 2d 507 (1978); Sibbett v. M.C.M. Livestock, Inc., 37 N.C. App. 704, 247 S.E. 2d 2, disc. rev. denied, 295 N.C. 735, 248 S.E. 2d 864 (1978), the evidence in the record before us is insufficient to raise an inference that defendants were negligent and that such negligence was a proximate cause of plaintiffs injuries.

If the situation created by defendants during the time plaintiff was at the hospital was in fact dangerous, plaintiff, since he was the expert in the work being done, knew as much, or more, than did defendants. When plaintiff returned from the hospital, he observed that defendants’ son had “notched” the tree and was cutting with plaintiffs saw toward the notch. He also observed that his rope, which he knew was 120 feet long, had been tied to the portion of the tree being cut and that defendant Harvey Purcell and his son were pulling on the rope to prevent the cut portion of the tree from falling toward the house. Plaintiff, aware of all these things, undertook to help pull the rope to make the tree top fall in the desired direction. The only fact of which plaintiff had no knowledge was that the end of the rope was tied to the third tree; however, there is nothing in the evidence to indicate that plaintiff could not have discovered this fact. On cross-examination, he testified: “When I picked it up I did not know that the end of the rope was wrapped around a tree. There was nothing that I know of, there was nothing that Bill [Harvey] Purcell did that would have prevented me from looking to see what it was wrapped around.” In our opinion, any dangerous situation created by defendants was as obvious to plaintiff as it was to defendants. Defendants, therefore, had no duty to warn plaintiff of “hidden dangers.”

The judgment appealed from is

Affirmed.

Judge Martin (Robert M.) concurs. Judge Clark dissents: