Russell v. Sam Solomon Co. , 49 N.C. App. 126 ( 1980 )

270 S.E.2d 518 (1980)

Dennis B. RUSSELL
v.
SAM SOLOMON COMPANY.

No. 8012SC297.

Court of Appeals of North Carolina.

October 7, 1980.

James R. Nance, Jr., Fayetteville, for plaintiff-appellant.

Anderson, Broadfoot & Anderson by Henry L. Anderson, Jr., Fayetteville, for defendant-appellee.

VAUGHN, Judge.

Two issues are brought for our review: whether Underwood's testimony concerning the statements and actions of defendant's employee should have been excluded and whether a directed verdict should have been granted to defendant. We answer both questions in the negative and reverse.

The following portions of Underwood's testimony were especially relevant to plaintiff's case:

The shelving I was shown was not a counter top as this. It was just open on the front and back. It was only three shelves on it when I saw it. It was glass shelving.... Of course, the top piece was missing or one of the shelves was missing. As to what I did with regard to the shelving I was shown, I put my hand on the shelving and it was loose.... The shelving was not secured in any manner. It was not clamped on. It was inlaid with a bracket but it was not clamped down. At the time I touched it, it was loose. You could move it back end to end and it was moveable. It was not tight, secure.

After reviewing his notes, Underwood further testified that Nichols had shown him the counter and "said that is the one that broke and that Dr. Russell got cut on."

This was not objectionable hearsay. Underwood's testimony as to what Nichols said as he showed him the counter was admissible as "a part of the operative conduct itself ... offered for [its] own sake and not as evidence of the truth of any statement made...." 1 Stansbury, N.C. Evidence 2d, § 159, at 534. It is unnecessary to consider whether Nichols' statement meets all the requirements for an admission of an agent against his principal. "[A] statement accompanying an act is admissible either for or against the principal ... when the statement characterizes or qualifies the act, in which case it would be so admissible without regard to any question of agency, under one of the so-called res gestae principles." 2 Stansbury, supra, § 169, at 18-19.

Underwood's testimony was also admissible for the purpose of corroborating plaintiff's testimony that defendant's courtroom exhibit was not an accurate replica of the counter that injured him. Plaintiff's argument at trial for admission was, therefore, entirely correct:

This man can testify to what he saw and observed. Now, this display case has been brought in and has sat here before the jury and Dr. Russell has been cross examined with regard to this display case; and, I think, that we can show through this witness that he approached an employee of the company who was present at the time the incident occurred and that he asked him to show him the area and the display case that was involved in this particular thing; and that he was shown a particular object and that it was not this particular case and I think that is proper at this point.

In addition, Underwood's description of the counter he was shown was relevant evidence tending to support an inference or defendant's negligence. Thus, it was prejudicial error to exclude Underwood's testimony.

We also agree with plaintiff's second contention that the doctrine of res ipsa loquitur should have been applied to the facts of this case. Res ipsa applies when direct proof of the cause of an injury is not available, the instrumentality involved in the accident is under the defendant's control, and the injury is of a type that does not ordinarily occur in the absence of some negligent act or omission. Snow v. Power Co., 297 N.C. 591, 256 S.E.2d 227 (1979); Restatement of Torts 2d, § 328 D (1965). Res ipsa may not, however, be used to infer negligence from the mere fact of an accident or injury. O'Quinn v. Southard, 269 N.C. 385, 152 S.E.2d 538 (1967).

On this appeal, we must consider plaintiff's evidence as true, viewing it in the light most favorable to him with the benefit of every reasonable inference. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973). His evidence tended to show the following. He was injured by a display counter which was under defendant's control. No one else was present when the injury occurred so only plaintiff could testify as to how it happened. He stated the shelving "gave way" as he placed his hand upon the shelf and that is was "instantaneous." The broken shelving was not presented by defendant at any time for testing or examination. It was discarded after the accident. Direct proof of the cause of the counter's collapse was, therefore, unavailable at trial. Nevertheless, in the ordinary course of things, a display counter does not shatter when one places his hand on it exerting only minimal pressure. See Young v. Anchor Co., Inc., 239 N.C. 288, 79 S.E.2d 785 (1954) (escalator suddenly jerked, stopped and quickly moved forward); Page v. Sloan, 12 N.C.App. 433, 183 S.E.2d 813, aff'd., 281 N.C. 697, 190 S.E.2d 189 (1972) (explosion of an electric water heater).

A directed verdict can be granted only when plaintiff's evidence, as a matter of law, is insufficient to justify a verdict in his favor. See G.S. 1A-1, Rule 50. One of defendant's grounds for a directed verdict was that plaintiff's evidence failed to disclose any actionable negligence. We do not agree. Res ipsa loquitur provided an inference of defendant's negligence sufficient to authorize, but not compel, a verdict for plaintiff. Lentz v. Gardin, 294 N.C. 425, 241 S.E.2d 508 (1978). Therefore, it was error to grant a directed verdict to defendant on that ground. Husketh v. Convenient Systems, 295 N.C. 459, 245 S.E.2d 507 (1978); McPherson v. Hospital, 43 N.C.App. 164, 258 S.E.2d 410 (1979). Defendant also requested a directed verdict on the ground that plaintiff was contributorily negligent. Plaintiff's evidence was that he did not lean upon the shelf and that he exerted only minimal pressure upon it. This does not disclose contributory negligence as a matter of law.

The judgment appealed from is reversed.

Reversed.

ROBERT M. MARTIN and WEBB, JJ., concur.