Revis v. Orr , 234 N.C. 158 ( 1951 )

66 S.E.2d 652 (1951) 234 N.C. 158

REVIS
v.
ORR.

No. 109.

Supreme Court of North Carolina.

September 19, 1951.

Sanford W. Brown and William V. Burrow, Asheville, for plaintiff, appellant.

Harkins, Van Winkle, Walton & Buck, Asheville, for defendant, appellee.

JOHNSON, Justice.

The single question presented here is whether the court erred in allowing defendant's motion for judgment of nonsuit.

As a general rule, a dance hall proprietor, like the occupant of any building used for ordinary business purposes, who directly or by implication invites others to enter his place of business, is under the legal duty to his patrons to exercise ordinary care to keep his premises, and all parts thereof to which persons lawfully present may go, in a safe condition for the use for which they are designed and intended, and to give warning of hidden dangers or unsafe conditions in so far as can be ascertained by reasonable inspection and supervision. See Drumwright v. North Carolina Theatres, 228 N.C. 325, 45 S.E.2d 379; Ross v. Sterling Drug Store, 225 N.C. 226, 34 S.E.2d 64; Anderson v. Reidsville Amusement Co., 213 N.C. 130, 195 S.E. 386. However, such occupant is not an insurer of the safety of patrons and invitees who may enter the premises. See Pratt v. Great Atlantic & Pacific Tea Co., 218 N.C. 732, 12 S.E.2d 242; Fox v. Great Atlantic & Pacific Tea Co., 209 N.C. 115, 182 S.E. 662; Cooke v. Great Atlantic & Pacific Tea Co., 204 N.C. 495, 168 S.E. 679; 38 Am.Jur., Negligence, Sec. 96, pp. 754 and 755.

The liability of an occupant to an invitee for negligence in failing to keep the premises in reasonably safe condition for the invitee, or in failing to warn him of dangers thereon, must be predicated upon the occupant's superior knowledge, over that of the invitee or patron, concerning the dangers of the premises. And, ordinarily, it is only when the dangerous condition or instrumentality is known to the occupant, or in the exercise of due care should have been known to him, and not known to the person injured, that a recovery may be permitted. Pratt v. Great Atlantic & Pacific Tea Co., supra, 218 N.C. 732, 12 S.E.2d 242, 243. See also 38 Am.Jur., Negligence, Sec. 97, p. 757.

In Pratt v. Great Atlantic & Pacific Tea Co., supra, Barnhill, J., speaking for the Court, said: "When claim is made on account of injuries caused by some substance on the floor along and upon which customers will be expected to walk, in order to justify recovery, it must be made to appear that the proprietor either placed or permitted the harmful substance to be there, or that he knew, or by the exercise of due care should have known, of its presence in time to have removed the danger or given proper warning of its presence."

Here, the evidence tends to show that when the plaintiff came out of the rest room a table was sitting out on or near the edge of the dance floor, some five or six steps from the rest room door; that the chair over which the plaintiff stumbled was lying between the table and the door,—only about a step and a half from the door. The evidence is silent on when or by whom the chair was knocked or placed there. Hence there is no evidence upon which to predicate a finding that the defendant knew, or in the exercise of ordinary care should have known, that the chair was lying where it was.

Nor is the plaintiff's case strengthened by the evidence of dim lighting in the dance hall. It was customary for the hall to be kept in semi-darkness to suit the wishes of the patrons. The evidence is that they "did not want too much light, they had rather be in a shady place." Anyway, the plaintiff testified that before she went in the rest room there was sufficient light in the dance hall for her to "see the people and objects around on the floor." And one of her companions said "it was light enough to have read a menu." Besides, it appears that the plaintiff was thoroughly familiar with the dance hall. She testified she had been there many times when the lighting conditions were the same. She further said: "I have been going out there three or four times a week for a period of something like four years. I knew quite a bit about the place."

We have not overlooked the statement of the witness Hudgins, manager of the club, to the effect that he made no formal "inspection through the dance hall on the particular evening," followed by his admission that "making an inspection through the dance hall was my duty and my responsibility." This, when considered with the rest of the evidence and circumstances bearing on the issue of negligence, is without material significance.

This record, when interpreted in the light of the controlling principles of law, impels the conclusion that the plaintiff failed to make out a prima facie case of actionable negligence against the defendant. Therefore, we do not reach for consideration the question of contributory negligence. The judgment below is

Affirmed.

VALENTINE, J., took no part in the consideration or decision of this case.