Thompson v. De Vonde

70 S.E.2d 424 (1952) 235 N.C. 520

THOMPSON
v.
DE VONDE.

No. 524.

Supreme Court of North Carolina.

April 30, 1952.

Alvin A. London, Charlotte, for plaintiff appellee.

Tillett, Campbell, Craighill & Rendleman, Charlotte, for defendant appellant.

BARNHILL, Justice.

The defendant relies solely upon his exception to the refusal of the court below to dismiss the action as in case of involuntary nonsuit. The exception is untenable and must be overruled.

The plaintiff started down the basement steps on a mission for the defendant. Hence he was at least an invitee, Pafford v. J. A. Jones Construction Co., 217 N.C. 730, 9 S.E.2d 408, Coston v. Skyland Hotel, 231 N.C. 546, 57 S.E.2d 793, and defendant owed him the duty to keep the premises in a reasonably safe condition and warn him of any hidden peril or unsafe condition in the stairway. Schwingle v. Kellenberger, 217 N.C. 577, 8 S.E.2d 918; Brown v. Montgomery Ward & Co., 217 N.C. 368, 8 S.E.2d 199; Pridgen v. S. H. Kress & Co., 213 N.C. 541, 196 S.E. 821; Anderson v. Reidsville Amusement Co., 213 N.C. 130, 195 S.E. 386.

While it is true the plaintiff had knowledge of the general conditions of the stairway, those conditions had been changed for the worse by the defendant. The light cord had been removed and a part of the tread of one of the steps had been broken off. Of the hidden peril and unsafe condition thus created, defendant failed to give notice or warning. The testimony— indeed the defendant's frank admission—to this effect is sufficient evidence of negligence to require the submission of appropriate issues to the jury.

But defendant contends there is no evidence the broken tread caused plaintiff's fall. There is, however, evidence that the broken tread was within two or three steps of the place a person would normally stop to turn on the light; that plaintiff tried to find the light cord and then took a step down, and "there wasn't any step there." This is sufficient to support an inference that the lack of light and the broken tread were the proximate cause of plaintiff's fall.

Under the circumstances here disclosed, whether it was an act of negligence on the part of plaintiff to proceed down the stairway after he failed to find the cord to the basement light was a question of fact for the jury. We could not so hold as a matter of law. He proceeded down the stairway at the request of plaintiff. He knew the general conditions but had not been warned of the newly created danger. He had the right, therefore, to assume the steps were in the same condition as when he last used them. These facts take this case out of the line of decisions represented by Batson v. City Laundry, 205 N.C. 93, 170 S.E. 136; Clark v. Cleveland Drug Co., 204 N.C. 628, 169 S.E. 217, and Benton v. United Bank Building Co., 223 N.C. 809, 28 S.E.2d 491, cited and relied on by defendant.

In the trial below we find

No error.