Spell v. Smith-Douglas Co.

108 S.E.2d 434 (1959) 250 N.C. 269

J. M. SPELL
v.
SMITH-DOUGLAS CO., Inc.

No. 522.

Supreme Court of North Carolina.

May 6, 1959.

Doffermyre, Stewart & Johnson, D. K. Stewart, Dunn, for plaintiff, appellant.

Taylor & Morgan, Lillington, Fletcher & Lake, I. Beverly Lake, Raleigh, for defendant, appellee.

HIGGINS, J.

Few, if any, questions of law are presented to this Court with more frequency than the sufficiency of evidence in a civil case to survive a motion for nonsuit. Wall v. Trogdon, 249 N.C. 747, 107 S.E.2d 757; Hood v. Queen City Coach Co., 249 N.C. 534, 107 S.E.2d 154; McFalls v. Smith, 249 N.C. 123, 105 S.E.2d 297; Griffin v. Blankenship, 248 N.C. 81, 102 S.E.2d 451.

The evidence in this case establishes the fact that plaintiff was an invitee upon the premises under the control of the defendant. Ordinarily, a proprietor of a store or business establishment is not an insurer of the safety of his invitees. He owes them the duty to exercise ordinary care to keep the premises in a reasonably safe condition and to give warning or notice of hidden perils or unsafe conditions insofar as they can be ascertained by reasonable inspection and supervision. Hood v. Coach Co., supra; 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; Ross v. Sterling Drug Store, 225 N.C. 226, 34 S.E.2d 64; Griggs v. Sears, Roebuck & Co., 218 N.C. 166, 10 S.E.2d 623; Bohannon v. Leonard-Fitzpatrick-Mueller Stores Co., 197 N.C. 755, 150 S.E. 356.

The plaintiff's evidence in the case showed two small holes in the platform prior to his injury. One was a knothole at the east end of the platform; the other was in the center. It was not over half an inch and went all the way through the board. He was familiar with the platform and knew of these defects. They did not cause his fall. He fell off the west side where his heel broke partially through one of the cypress boards. Before his fall he saw where he was stepping and saw nothing wrong. His witness, an adverse one to be sure, but nevertheless his witness, testified that in the Summer he had inspected the platform from the bottom and the boards appeared sound. This witness saw no holes in the platform except the two—one in the middle and the knothole on the east end. However, for the purpose of a nonsuit, we must assume the plaintiff's evidence to be correct, and that his fall was caused by his heel crushing into a board at the west side. This board looked sound to him at the time he stepped on it on February 4. It had looked sound from the bottom when his witness inspected it the previous Summer. The unsound condition was in the center of the board and did not show on either the upper or lower surface. The evidence is insufficient to show that a reasonable inspection would have disclosed the hidden defect which caused plaintiff's fall. Consequently the evidence was insufficient to make out a case. The judgment of involuntary nonsuit is

Affirmed.