Hood v. Queen City Coach Company

107 S.E.2d 154 (1959) 249 N.C. 534

Henry B. HOOD
v.
QUEEN CITY COACH COMPANY, a Corporation, and Asheville Union Bus Station, Inc., a Corporation.

No. 92.

Supreme Court of North Carolina.

February 25, 1959.

J. Y. Jordan, Jr., Asheville, John F. Ray, Charlotte, Coble & Behrends, Albemarle, by Samuel Behrends, Jr., Albemarle, for defendant, appellant.

Harkins, Van Winkle, Walton & Buck, Asheville, by Herbert L. Hyde, Asheville, for plaintiff, appellee.

HIGGINS, Justice.

Appellant's assignments of error present these questions of law: (1) Is the evidence sufficient to support the issue of negligence? (2) Does contributory negligence appear from the evidence as a matter of law? (3) Does reversible error appear in the challenged portions of the court's charge?

The plaintiff was entitled to have the issue of negligence submitted to the jury if his evidence and the legitimate inferences from it tended to show the defendant breached a legal duty which it owed to him, and that the breach of, or failure to perform, that duty proximately caused his injury. McFalls v. Smith, 249 N.C. 123, 105 S.E.2d 297; Taylor v. Brake, 245 N.C. 553, 96 S.E.2d 686; Williamson v. Clay, 243 N.C. 337, 90 S.E.2d 727; Ward v. Smith, 223 N.C. 141, 25 S.E.2d 463.

The plaintiff contended he was an invitee on the appellant's premises for the purpose of purchasing transportation over its lines; that his mission was for the mutual benefit of the appellant and himself; that the appellant was under the legal duty (1) to maintain its premises in a reasonably safe condition for the invited use, and (2) to give warning of hidden dangers; that the defendant breached that duty and thereby caused plaintiff's injury.

On the other hand, the defendant contended that at the time of the plaintiff's injury he was a trespasser, or, if not a trespasser, was on its premises as a licensee; that by entering the premises for his own purposes he assumed all risk incident to the condition of the premises at the time, and that the defendant could be held liable only for wilful and wanton injury, and that the evidence fails to disclose such injury.

The court charged fully as to the owner's liability for injury resulting from the condition of the premises according as the jury might find the plaintiff to have been a trespasser, a licensee, or an invitee. The charge was in accordance with the rules laid down in Thompson v. DeVonde, 235 N.C. 520, 70 S.E.2d 424; Coston v. Skyland Hotel, 231 N.C. 546, 57 S.E.2d 793; Pafford v. J. A. Jones Construction Co., 217 N.C. 730, 9 S.E.2d 408; Lowe v. City of Gastonia, 211 N.C. 564, 191 S.E. 7; Brigman v. Fiske-Carter Construction Co., 192 N.C. 791, 136 S.E. 125, 49 A.L.R. 773; Ellington v. Ricks, 179 N.C. 686, 102 S.E. 510; Fortune v. Southern R. Co., 150 N.C. 695, 64 S.E. 759.

As affecting liability for injury resulting from the condition of premises in private ownership or occupancy, one who enters without permission or other right is a trespasser. One who enters with permission but solely for his own purposes is a licensee. One who enters by invitation, express or implied, is an invitee. Thompson v. DeVonde, supra; Pafford v. J. A. Jones Construction Co., supra; Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820; Lange v. St. Johns Lumber Co., 115 Or. 337, 237 P. 696; Smith v. Burks, Tenn.App., 305 S.W.2d 748; Tahan v. Wagaraw Holding Co., 28 N.J.Super. 436, 101 A.2d 38. "The duty owed to trespassers is that they must not be wilfully or wantonly injured." Jessup v. High Point, Thomasville & Denton R. Co., 244 N.C. 242, 93 S.E.2d 84, 87. "As to a licensee the duties of a property owner are substantially the same as with respect to a trespasser. But a vital difference arises out of conditions which impose upon the owner of property the duty of anticipating the presence of a licensee. If the owner, while the licensee is upon the premises exercising due care for his own safety, is affirmatively and actively negligent in the management of his property or business, as a result of which the licensee is subjected to increased danger, the owner will be liable for injuries sustained as a result of such active and affirmative negligence." Wagoner v. North Carolina R. Co., 238 N.C. 162, 77 S.E.2d 701, 709. "The proprietor of a store is not an insurer of the safety of customers while on the premises. But he does owe to them the duty to exercise ordinary care to keep the premises in a reasonably safe condition and ``to give warning of hidden perils or unsafe conditions in so far as can be ascertained by reasonable inspection and supervision.'" Ross v. Sterling Drug Store, 225 N.C. 226, 34 S.E.2d 64.

The evidence disclosed that by contract arrangement approved by the North Carolina Utilities Commission, the Asheville Union Bus Station furnished terminal facilities for the appellant and other bus lines entering the City of Asheville, sold their tickets, accepted, transferred, baggage, mail, freight, etc., and performed the functions for each line which otherwise would have necessitated separate terminals. The evidence was sufficient, therefore, to support a finding it was to the mutual benefit of the parties for the plaintiff to enter the bus station to purchase a ticket to Charlotte over the defendant's line. From the plaintiff's parked automobile the short, direct, and frequently used approach to the bus station was over the paved surface of Lot No. 7 and the public alley which were so merged as to offer a continuous paved route from plaintiff's automobile to the rear doors of the bus station; that the public, especially pedestrians, had so used this approach for a long period of time; that no notice or warning existed anywhere that the public was not expected to use it or that its use involved any except obvious hazards. Notice on appellant's building, "apply at office," with the arrow pointing along the driveway, tended to indicate its use by those having business was invited. Also, the officials of the company each time they entered the office door were confronted with the conditions tending to show danger. The evidence permitted the finding the plaintiff was an invitee with the legal obligation on the defendant (1) to maintain the premises in a reasonably safe condition for the legitimate use of the invitee, and (2) to provide safeguards against injury by reason of depressed holes, pitfalls, or other hidden dangers. Failure to do either was negligence. Batts v. Home Telephone & Telegraph Co., 186 N.C. 120, 118 S.E. 893.

The evidence disclosed that lights from the street and from the bus station illuminated the surface of the driveway but did not penetrate into the walk and did not show that danger existed by reason thereof. The defendant permitted the jury to decide the issue of negligence (as well as contributory negligence and damages) on the basis of plaintiff's evidence alone. The evidence was sufficient to support a finding of actionable negligence. Williamson v. Clay, supra. The jury having found actionable negligence on the part of the defendant, in order to defeat recovery the burden devolved upon it to show the contributory negligence of the plaintiff. "Nonsuit on the ground of contributory negligence may be sustained when, and only when, no other reasonable inference is deducible from the plaintiff's evidence." Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316, 320; Bemont v. Isenhour, 249 N.C. 106, 105 S.E.2d 431; High v. Atlantic Coast Line R. Co., 248 N.C. 414, 103 S.E.2d 498; Keener v. Beal, 246 N.C. 247, 98 S.E.2d 19. Under the rules laid down in the cases, therefore, we must hold that the evidence of contributory negligence does not appear as a matter of law.

Failing in the effort to have the judgment reversed on the first two grounds assigned, nevertheless the defendant has urgently contended that it is entitled to a new trial for alleged errors in the charge. Some of the assignments relate to the statement of the plaintiff's contentions. No objection was lodged at the time and no request was made for correction. The principles of law were correctly stated and correctly applied to the evidence in the case.

The defendant, however, in the brief and on the oral argument, has contended: "In those portions of the charge the court submitted to the jury the possibility of a changed condition in the premises after long public use. No evidence to support submission of this question to the jury appears in the record." The court's charge as to changed conditions was evidently taken from the third paragraph of the opinion by Stacy, J., (later C. J.,) in the case of Batts v. Home Telephone & Telegraph Co., supra. Unless the record discloses evidence of a change in condition, the charge, perhaps, would be objectionable. However, we think there was evidence in the case tending to show a change of condition. The plaintiff offered and the court admitted in evidence generally, without qualification, four enlarged photographs of the place where the injury occurred. Of course, upon objection the admission of these photographs should, and no doubt would have been restricted and their use limited to the purpose of illustrating the testimony. State v. Norris, 242 N.C. 47, 86 S.E.2d 916, and cases cited. However, no objection was made to the admission of the photographs and map as substantive evidence. Counsel on both sides were able and painstaking trial lawyers. We may assume that each, for his own reason, was satisfied to have the photographs and map introduced as substantive evidence. The examination and cross-examination with respect to them tend to confirm this view.

These photographs showed the curb or wall around the depression to have been shattered at both ends and iron upright pipes broken off. Parts of these pipes remained imbedded in the concrete. These broken pipes, in view of the city ordinance requiring a railing or fence around depressions, were sufficient to permit the inference that at some time a railing may have been installed and later broken. From the judge's charge it appears that such had been the contention of plaintiff's counsel.

In addition, the record fails to show when the excavating for the walk was done— whether before or after the surfacing of Lot No. 7 out of which it was carved, or whether in fact there had been a protecting rail around the walk. These matters were within the peculiar knowledge of the appellant. Its silence no doubt furnished plaintiff's counsel some basis for the contention there had been at some time a change in condition—a broken and unrepaired rail leaving the pit unprotected. In this view of the evidence, a permissible one we think, the court's charge as to change of condition was permissible, if not required.

In the judgment of the Superior Court of Buncombe County, we find

No error.