Norwood v. Sherwin-Williams Co.

WEBB, Judge.

If the defendant was entitled to a directed verdict at the end of all the evidence, the judgment notwithstanding the verdict was properly entered. See Dickinson v. Pake, 284 N.C. 576, 201 S.E. 2d 897 (1974). We hold that all the evidence shows the plaintiff was contributorily negligent and we affirm the judgment of the superior court.

A plaintiff who trips or falls over an object on the premises of another is barred from recovery by his or her contributory negligence if the object is in a position at which the plaintiff would have seen it had he or she looked. See Routh v. Hudson-Belk Co., 263 N.C. 112, 139 S.E. 2d 1 (1964); Jones v. Pinehurst, Inc., 261 N.C. 575, 135 S.E. 2d 580 (1964); Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E. 2d 338 (1963); Little v. Oil Corp., 249 N.C. 773, 107 S.E. 2d 729 (1959); Porter v. Niven, 221 N.C. 220, 19 S.E. 2d 864 (1942); Farmer v. Drug Corp., 7 N.C. App. 538, 178 S.E. 2d 64 (1970). The plaintiff, relying on Hunt v. Meyers Co., 201 N.C. 636, 161 S.E. 74 (1931) contends that there was evidence in this case that the area in which the pallet was placed was dark or shadowed such that she could not see the pallet. The difficulty with this argument is that the evidence does not show the shadows prevented the plaintiff from seeing the pallet. She testified she did not look down. She did not testify that she looked and the shadows prevented her from seeing the pallet. Plaintiff also contends that the lady at the cash register, the tall display on the pallet, the merchandise along the aisle, and the impulse items diverted her attention from the pallet. Our Supreme Court has held in Walker v. Randolph County, 251 N.C. 805, 112 S.E. 2d 551 (1960) that a person is excused from seeing what he should ordinarily have seen by a condition which might divert the attention of a prudent person from looking. In that case Randolph County maintained a bulletin board which extended 19 inches over a staircase. The plaintiff was looking up for a notice on the board and fell down the steps. We do not believe we should extend this doctrine of diversion to say that a person may reasonably be diverted from seeing what he or she should have seen by the normal activities in a retail store.

We hold that the pallet was in plain view where the plaintiff should have seen it by the exercise of due care.

Affirmed.

Judge HedricK concurs. Judge Wells dissents.