Sanders v. ANCHOR COMPANY

183 S.E.2d 312 (1971) 12 N.C. App. 362

Aggie Mae SANDERS
v.
ANCHOR COMPANY, Inc.

No. 7119SC560.

Court of Appeals of North Carolina.

September 15, 1971.

Ottway Burton, Asheboro, for plaintiff appellant.

Smith, Moore, Smith, Schell & Hunter by Bynum M. Hunter, Greensboro, for defendant appellee.

PARKER, Judge.

A storekeeper is not an insurer of his customers' safety while they are on his premises. He does owe them the duty to exercise ordinary care to keep in a reasonably safe condition those portions of his premises which he may expect they will use during business hours, and to give warning of hidden peril or unsafe conditions insofar as these are known or can be ascertained by reasonable inspection. Routh v. Hudson-Belk Co., 263 N.C. 112, 139 S.E.2d 1. Therefore, before plaintiff can recover in this case she must, by evidence, establish actionable negligence on the part of defendant. This, she has failed to do.

While plaintiff alleged that the door complained of was defective, she offered no evidence to support that allegation. No inference of negligence on the part of defendant arises from the mere happening of the occurrence disclosed by plaintiff's evidence; thus, plaintiff may not rely upon the doctrine of res ipsa loquitur to carry her case to the jury. Watkins v. Taylor Furnishing Co., 224 N.C. 674, 31 S.E.2d 917; Connor v. Thalhimers Greensboro, Inc., 1 N.C.App. 29, 159 S.E.2d 273. Plaintiff offered no evidence to show that the door was improperly constructed, or that it had any mechanical defect, or that it was improperly maintained. Neither is there any evidence that the entrance doors at defendant's store were not the customary type used in similar stores.

While plaintiff attempted to introduce evidence which she contends would tend to show that similar accidents had occurred previously, her proffered evidence was incompetent for that purpose and was properly excluded. Plaintiff's witness, Mrs. Ruth Dixon, could testify that her finger had been injured when it became caught in an entrance door to defendant's store, but she was unable to remember which door it was, whether she received her injury in 1962 or 1963, or how it happened. Similarly, while plaintiff's witness, Mrs. Bullins, who had worked on the second floor in defendant's store, could testify that "on several occasions people got hurt with little mashed fingers," she could not remember any dates, did not know which door caused the injuries or the manner in which they occurred, and everything she did know concerning such injuries was what someone else had told her. Plaintiff's assignments of error directed to the exclusion of the testimony of Mrs. Dixon and Mrs. Bullins are without merit.

Plaintiff contends there was error when the trial judge sustained defendant's objection to the following question which plaintiff's counsel asked defendant's store manager, who was being examined as an adverse witness:

Question: "To your knowledge, how many people were injured in the doors that Mrs. Sanders was injured in, prior to May 22, 1963?"

While the question may have been proper, what the witness would have answered does not appear in the record, and the exclusion of testimony cannot be held prejudicial on appeal when the record fails to show what the answer of the witness would have been. 1 Strong, N.C. Index 2d, Appeal and Error, § 49, p. 200.

We have carefully examined all of appellant's remaining assignments of error, and find them without merit. The judgment appealed from directing verdict for the defendant is

Affirmed.

BRITT and MORRIS, JJ., concur.