James v. Honeycutt

HEDRICK, Chief Judge.

By his first and third assignments of error, plaintiff contends that the trial court erred in submitting the issue of contributory negligence to the jury and denying plaintiffs motion to set aside the verdict as to this issue, because as a matter of law there was insufficient evidence to support a jury finding of contributory negligence. We disagree.

For contributory negligence to apply, it is not necessary that plaintiff have actual knowledge of the danger of injury to which his conduct exposes him; plaintiff may be contributorily negligent if his conduct ignores unreasonable risks or dangers which would have been apparent to a prudent person exercising ordinary care for his own safety. Smith v. Fiber Controls, Corp., 300 N.C. 669, 268 S.E. 2d 504 (1980).

In the present case, a jury could conclude, based on the evidence presented at trial, that plaintiff was aware or should have been aware of the “wobbly” condition of the step and that his injury was proximately caused by his negligent use of that step. Although plaintiff testified that he did not know of any defect in the step before the accident, Officer Vernon testified that he had been up and down the same steps many times before the incident in question, and that he had noticed and was aware of the fact that the step was “a little bit wobbly.” Officer Colie testified that after the incident in question he examined the steps by walking up and down them and that one step would move under his weight. Plaintiff testified that he had gone up and down the steps in question many times over many years before the accident and that he had not noticed anything wrong with the step. From the evidence given in the case, the jury could reasonably infer that the step which caused plaintiffs fall was “a little bit wobbly” before the accident and had been so for a considerable period of time. The jury could also reasonably infer that plaintiff had climbed the same steps many times before the accident and the step was “a little bit wobbly” when he climbed them. From this evidence, the jury could reasonably infer that plaintiff knew or should have known of the dangerous condition of the step, and his continued use of the step when he knew or ought to have known of its condition was negligence and such negligence was a proximate cause of his fall and subsequent injury. Therefore, we hold that the trial judge was correct in submitting the issue of contributory negligence to the jury and denying the motion for judgment notwithstanding the verdict.

In his remaining assignment of error, plaintiff contends that the trial court improperly instructed the jury on the issue of contributory negligence by failing to apply the law to the evidence. After generally discussing the law relating to contributory negligence, the judge listed the specific acts which defendants contended constituted contributory negligence in this case. This is not, as plaintiff argues, a case where the judge failed to relate to the jury specific acts or omissions arising from the evidence which would constitute negligence. Therefore, we hold that the court’s instructions were correct.

No error.

Judges WHICHARD and JOHNSON concur.