Diamond v. McDonald Service Stores

Civil action to recover damages for personal injuries alleged to have been caused by the wrongful act, neglect, or default of the defendant.

The defendant conducts a gasoline and service station in the city of Greensboro. Plaintiff is a welder, employed by Rierson Brothers of the same city. On 21 August, 1936, in response to a call from the defendant, the plaintiff went to defendant's station, with an acetylene torch, for the purpose of cutting a steel runner over a grease pit. The plaintiff examined the pit and its surroundings to make sure that no inflammable material was located within range of fire of the torch. Observing nothing of a dangerous character in or near the pit, the plaintiff began work at the point indicated by defendant's agent. When plaintiff had cut about a half-inch, "with his flame aimed at an angle downward," a barrel or container of alcohol, which had theretofore been stored in the pit by the defendant, exploded and burned plaintiff's face and arms. Plaintiff testified: "I never did see this can of alcohol that exploded. I did not know it was there. . . . Neither the man who took me there, nor anyone else connected with the defendant corporation, pointed out to me or told me of any inflammable material in close proximity of the work I was to do."

Upon denial of liability and plea of contributory negligence, there was a judgment of nonsuit at the close of plaintiff's evidence, from which he appeals, assigning errors. The case turns on two questions: (1) Was it the duty of the defendant to warn the plaintiff of the presence of inflammable material in the pit? (2) Was plaintiff contributorily negligent? Both questions, we apprehend, should be submitted to the jury for answer under proper instructions from the court. Ellington v. Ricks, 179 N.C. 686, 102 S.E. 510; Evans v.Lbr. Co., 174 N.C. 31, 93 S.E. 430; Absher v. Raleigh, ante, 567; Colev. R. R., ante, 591. See Cook v. Mfg. Co., 183 N.C. 48, 110 S.E. 608. "The rule applicable in cases of this kind is, that if diverse inferences may reasonably be drawn from the evidence, some favorable to the plaintiff and others to the defendant, the cause should be submitted to the jury for final determination" — Adams, J., in Hobbs v. Mann, 199 N.C. 532, 155 S.E. 163. See Lincoln v.R. R., 207 N.C. 787, 178 S.E. 601; Wadsworth v. Trucking Co., 203 N.C. 730,166 S.E. 898; Ridge v. High Point, 176 N.C. 421, 97 S.E. 369.

On motion to nonsuit, the plaintiff is entitled to the benefit of every fact and inference of fact pertaining to the issues involved, which may reasonably be deduced from the evidence. Cole v. R. R., supra; James v.Coach Co., 207 N.C. 742, 178 S.E. 607; Nash v. Royster, 189 N.C. 408,127 S.E. 356.

Negligence is a breach of some duty imposed by law. It is doing other than, or failing to do, what a reasonably prudent man, similarly situated, would have done. Cole v. R. R., supra. In short, negligence is a want of due care; and due care means commensurate care under the circumstances.Small v. Utilities Co., 200 N.C. 719, 158 S.E. 385. The lack of diligence, or want of due care, may consist in doing the wrong thing at the time and place in question, or it may arise from inaction or from doing nothing when something should have been done. Moore v. Iron Works,183 N.C. 438, 111 S.E. 776. The standard is always the conduct of the reasonably prudent man, or the care which a reasonably prudent man would have used under the circumstances. Tudor v. Bowen, 152 N.C. 441,67 S.E. 1015. The rule is constant, while the degree of care which a reasonably prudent man exercises varies with the exigencies of the occasion. Small v. Utilities Co., supra; Fitzgerald v. R. R.,141 N.C. 530, 54 S.E. 391; Hanes v. Shapiro, 168 N.C. 24,84 S.E. 33; 9 R. C. L., 1200.

As the principles involved are well settled, and the case is to be tried again, we refrain from discussing the evidence, so that, on the rehearing neither side may be benefited or prejudiced thereby.

Reversed.