Blake v. Great Atlantic & Pacific Tea Co.

75 S.E.2d 921 (1953) 237 N.C. 730

BLAKE
v.
GREAT ATLANTIC & PACIFIC TEA CO.

No. 669.

Supreme Court of North Carolina.

May 20, 1953.

Frank McNeill and McLean & Stacy, Lumberton, for plaintiff-appellant.

Varser, McIntyre & Henry, Lumberton, for defendant-appellee.

BARNHILL, Justice.

That the plaintiff was an invitee of the defendant at the time he suffered his injuries is not debatable. Pafford v. J. A. Jones Construction Co., 217 N.C. 730, 9 S.E.2d 408.

So far, however, this Court has not held that water alone, unmixed with oil or grease or other slippery substance, on a floor over which an invitee may be expected to pass, creates a hazard against which the proprietor must guard. Counsel do not call our attention to any decision from any other jurisdiction to that effect. See, however, S. S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132; Jutras v. Amoskeag Mfg. Co., 84 N.H. 171, 147 A. 753; Shumaker v. Charada Inv. Co., 183 Wash. 521, 49 P.2d 44; Kraus v. Wolf, 253 N.Y. 300, 171 N.E. 63; and Bridgford v. Stewart Dry Goods Co., 191 Ky. 557, 231 S.W. 22.

Be that as it may, we are of the opinion plaintiff's own account of the mishap which caused the injuries for which he seeks recovery clearly discloses a failure on his part to exercise ordinary care for his own safety which, in any event, bars his right of recovery.

He testified that the loaded truck was too heavy to push. He had to pull it. Necessarily this placed considerable pressure on his feet. Yet he undertook to back into the warehouse and pull the truck over the doorsill without looking where he was going or giving any attention whatsoever to the condition of the floor where he would be compelled to place his feet in order to apply the additional pressure required to propel the truck across the obstruction created by the doorsill. On his own testimony he might as well have blindfolded himself before entering the building. In practical effect that is what he did. These facts, to which plaintiff himself testified, will not permit any reasonable inference other than that he failed to exercise ordinary care for his own safety. Porter v. Niven, 221 N.C. 220, 19 S.E.2d 864; Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E.2d 740; Lee v. Carolina Upholstery Co., 227 N.C. 88, 40 S.E.2d 688; Holderfield v. Rummage Bros. Trucking Co., 232 N.C. 623, 61 S.E.2d 904. A plaintiff will not be permitted to recover for injuries resulting from a hazard he helped to create. Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337.

In Porter v. Niven, supra, where judgment of nonsuit was affirmed, the facts are sufficiently similar to render the decision therein pertinent here. In that case, Denny J., speaking for the Court, says:

"In the instant case, apparently, the plaintiff pushed the screen door open with one of the milk cans which he was carrying, and simply took it for granted that there was no obstruction in the passage-way, and failed to make any observation as to whether or not there was an obstruction in the passage-way, when by his own testimony he could have seen the churn if he had looked."

The judgment entered in the court below is Affirmed.

JOHNSON, Justice (dissenting).

It seems to me the majority opinion weighs this plaintiff's conduct too heavily against him.

The plaintiff was experienced in the business of trucking and delivering freight. For some twelve years he had been hauling foodstuffs for the Statesville Flour Mills. The A & P store in Southern Pines was one of its customers of long standing. He was thoroughly familiar with the platform and the back door of the store and with the floor inside the door where the injury occurred. He had been making deliveries at this store for some ten years. Always before the floor had been in a safe condition. Customarily there had been sawdust or sand on the floor. On the day of the injury, the plaintiff backed up to the loading platform behind the store and let down the "tail gate" about even with the platform and proceeded to unload in the usual manner by taking the two-wheel upright hand truck off the platform and pushing it onto the body of the motor truck and loading it. The natural movement then was to back the hand truck off the motor truck body onto and across the platform and through the door. The platform was only five feet wide. Thus, to have tried to turn around on such narrow space would have been an awkward movement. Besides, the loaded truck had to be taken over the door-stop. As to this, the plaintiff testified: "I had to back in the door, couldn't push the truck in; I backed in the door, pushed it open with my back and backed in. * * * The door was partly open. I had to push it open to go in."

This was but a shorthand explanation of the method usually followed by experienced truckers in getting a loaded hand truck over an obstruction like a door-stop. The procedure is to pull the truck, rather than push it, over the obstruction. It is a crisscross movement—first one wheel is pulled up and over, and then the other.

It is readily inferable from the whole of the plaintiff's testimony that this was the usual method which he had followed through the years in unloading at the defendant's store.

The rule is firmly established with us that nonsuit on the ground of contributory negligence may be allowed only when plaintiff's own evidence establishes contributory negligence so clearly that no other reasonable inference is deducible therefrom. Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431; Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Hobbs v. Drewer, 226 N.C. 146, 37 S.E.2d 121. If more than one inference may reasonably be drawn from the evidence, the question of contributory negligence must be submitted to the jury. Bundy v. Powell, supra; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637. The plaintiff is entitled to the benefit of the rule that the evidence must be considered in the light most favorable to him. Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25. And he is entitled to every reasonable inference and intendment which may logically and reasonably be drawn from the evidence in support of his claim. James v. Atlantic & East Carolina R. Co., 236 N.C. 290, 72 S.E.2d 682; Maddox v. Brown, 232 N.C. 244, 59 S.E.2d 791; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R. 2d 881.

Judging the plaintiff's conduct by the rule of the reasonably prudent man, I do not see how it can be said that the only reasonable inference to be drawn therefrom is that he negligently contributed to his injury. It seems to me that the other inference is clearly deducible, and this makes it a case for the jury.

Clearly the testimony made out a prima facie case of actionable negligence against the defendant. As to this, the plaintiff testified: "The water on the floor caused me to slip down; it was slick. Two men helped me up. The (defendant's) Assistant Manager said * * *: ``Boys I told you to clean that water up.'" See Bowden v. S. H. Kress & Co., 198 N.C. 559, 152 S.E. 625; Parker v. Great Atlantic & Pacific Tea Co., 201 N.C. 691, 161 S.E. 209; Brown v. Montgomery Ward & Co., 217 N.C. 368, 8 S.E.2d 199; Harris v. Montgomery Ward Co., 230 N.C. 485, 53 S.E.2d 536; Lee v. H. L. Green & Co., 236 N.C. 83, 72 S.E.2d 33.

My vote is to reverse.

ERVIN and PARKER, JJ., concur.