Brady v. CAROLINA COACH COMPANY , 2 N.C. App. 174 ( 1968 )

162 S.E.2d 514 (1968) 2 N.C. App. 174

Margaret J. BRADY
v.
CAROLINA COACH COMPANY, a corporation, and Donnie Gay.

No. 68SC178.

Court of Appeals of North Carolina.

August 14, 1968.

Gardner, Connor & Lee, by J. M. Reece, Wilson, for plaintiff appellant.

Thorp & Etheridge, by William D. Etheridge, Rocky Mount, for Carolina Coach Company, defendant appellee.

Dupree, Weaver, Horton, Cockman & Alvis, by Jerry S. Alvis, Raleigh, for Donnie Gay, defendant appellee.

BROCK, Judge.

By her evidence and argument, plaintiff bottoms her whole case upon the theory that the coffee spilled by the bus driver ran down the counter, across the raised platform and onto the floor, and that plaintiff slipped and fell because of this coffee on the floor. However, taking the evidence in the light most favorable to the plaintiff, there is no testimony, or other explanation, to connect a spot of coffee on the floor immediately behind the plaintiff with coffee that was spilled some distance away to her mother's right. Although plaintiff's mother described a "damp" spot running out onto the floor from beside her right foot, plaintiff was seated to her left; this is in no way connected with a location behind where plaintiff was seated. Also, plaintiff's testimony that she looked before she stepped onto the floor and that she saw no wet spot is considerable evidence that there was no wet spot on the floor at the point she put her foot down.

Clearly there were numerous other people being served at the counter and walking back and forth behind plaintiff anyone of whom might have spilled a little coffee or some other liquid on the floor, either before plaintiff slipped, or while they were trying to assist her after she slipped. The plaintiff's evidence affirmatively shows there was no wet spot on the floor when she took her seat, and, having remained only about ten minutes, the spilling of a little coffee by another customer within that interval of time would hardly give defendants reasonable time to acquire notice under the circumstances disclosed by the evidence in this case.

Nevertheless, proceeding upon plaintiff's theory, there is plenary evidence that plaintiff had full knowledge that a cup of coffee had been spilled on the counter to her mother's right, and she had as much opportunity as anyone to anticipate that some of the coffee might run down the counter and onto the floor. If there was danger of this occurring, it was as obvious to the plaintiff as to the defendants. Plaintiff was an invitee and it was the duty of defendant Donnie Gay to exercise ordinary care to keep the premises which plaintiff was to use in a reasonably safe condition, so as not to expose her unnecessarily to danger, and to give warning of hidden conditions and dangers of which he had knowledge, express or implied. However, defendant Donnie Gay was under no duty to warn plaintiff, as an invitee, of an obvious condition or of a condition of which plaintiff had equal or superior knowledge. Wrenn v. Hillcrest Convalescent Home, 270 N.C. 447, 154 S.E.2d 483. The operator of a restaurant does not insure his patrons against slipping or falling upon the floor. Nor does the mere fact that one slips and falls on a floor constitute evidence of negligence. The invitee has the duty to see that which can be seen in the exercise of ordinary prudence, and to use reasonable safeguards to protect herself. Hinson v. Cato's, Inc., 271 N.C. 738, 157 S.E.2d 537.

Plaintiff's evidence fails to show a breach of duty on the part of Donnie Gay.

Plaintiff argues that defendant, Carolina Coach Company, owed to the plaintiff the highest degree of care for her safety so far as is consistent with the practical operation and conduct of its business. In support of this plaintiff cites Harris v. Atlantic Greyhound Corporation, 243 N.C. 346, 90 S.E.2d 710, 58 A.L.R. 2d 939. In the Harris case the question was one of structure of the building, and is not applicable to the case sub judice. When property is demised in a good condition and state of repair, suitable for the reasonable, ordinary and contemplated use of the premises by the lessee and the contemplated use is not one which, in itself, must prove to be offensive, obnoxious, or dangerous to third persons, the tenant, and not the owner or landlord, is liable for injuries to a third person caused by the negligently created condition or use of the demised premises. 32 Am.Jur., Landlord and Tenant, Sec. 817, p. 695. There is no allegation or evidence that Carolina Coach Company was negligent in leasing the premises to Donnie Gay; all of the evidence tends to show that Donnie Gay and his employees were reputable and experienced in the operation of a restaurant. The high degree of care urged by the plaintiff would require Carolina Coach Company to constantly oversee the operation of the restaurant; and, under the circumstances of this case, we hold that such a burden would not be consistent with the practical operation and conduct of its business as a common carrier.

As to both defendants the entry of judgment of nonsuit is

Affirmed.

MALLARD, C.J., and PARKER, J., concur.