Skipper v. Cheatham

107 S.E.2d 625 (1959)

249 N.C. 706

Lula Maye SKIPPER v. A. B. CHEATHAM and Mary V. Cheatham, t/b/a Saunders Drug Store.

No. 166.

Supreme Court of North Carolina.

March 18, 1959.

Aaron Goldberg and Rountree & Clark, Wilmington, for plaintiff-appellant.

Poisson, Campbell & Marshall, Wilmington, for defendants-appellees.

BOBBITT, Justice.

Are the facts alleged, considered in the light most favorable to plaintiff, sufficient to support findings (1) that defendants were negligent in maintaining the scales in their store entrance, and (2) that such negligence proximately caused plaintiff's injury?

*628 Defendants were not insurers of the safety of their customers. Sledge v. Wagoner, 248 N.C. 631, 104 S.E.2d 195. The doctrine of res ipsa loquitur does not apply. Copeland v. Phthisic, 245 N.C. 580, 96 S.E.2d 697. No inference of negligence arises from the mere fact of an accident or injury. Fleming v. Twiggs, 244 N.C. 666, 94 S.E.2d 821.

Defendants' legal duty was to exercise ordinary care to keep the entrance in a reasonably safe condition for the use of customers entering or leaving their store and to warn them of hidden dangers or unsafe conditions known to defendants or ascertainable by them through reasonable supervision or inspection. Fanelty v. Jewelers, 230 N.C. 694, 55 S.E.2d 493; Lee v. H. L. Green & Co., 236 N.C. 83, 72 S.E.2d 33; Sledge v. Wagoner, supra.

As stated by Rodman, J., in Harris v. Nachamson Department Stores Co., 247 N.C. 195, 198, 100 S.E.2d 323, 326: "The law imposes liability on the owner of property for injuries sustained by an invitee which are caused by dangerous conditions known, or which should have been known, by the property owner but are unknown and not to be anticipated by the invitee."

"The law requires a storekeeper to maintain his storeroom and the entrance thereto in such a condition as a reasonably careful and prudent storekeeper would deem sufficient to protect customers from danger while exercising ordinary care for their own safety." Tyler v. F. W. Woolworth Co., 181 Wash. 125, 41 P.2d 1093, 1094.

The cause of action consists of the facts alleged. G.S. § 1-122; Lassiter v. Norfolk & C. R. R. Co., 136 N.C. 89, 48 S.E. 642. "The complaint must show that the particular facts charged as negligence were the efficient and proximate cause, or one of such causes, of the injury of which the plaintiff complains." Stamey v. Rutherfordton Electric Membership Corp., 247 N. C. 640, 645, 101 S.E.2d 814, 818. The facts alleged, but not the pleader's legal conclusions, are deemed admitted where the sufficiency of a complaint is tested by demurrer. Stamey v. Rutherfordton Electric Membership Corp., supra.

As stated by Johnson, J., in Shives v. Sample, 238 N.C. 724, 79 S.E.2d 193, 195: "* * * negligence is not a fact in itself, but is the legal result of certain facts. Therefore, the facts which constitute the negligence charged and also the facts which establish such negligence as the proximate cause, or as one of the proximate causes, of the injury must be alleged."

Whether the scales constituted "a dangerous trap" or "a hazardous and dangerous condition" are legal conclusions. These expressions, incorporated in plaintiff's allegations, shed no light upon the facts and circumstances existing on the occasion of plaintiff's injury.

No facts descriptive of the scales or of the entrance to defendants' store are alleged except the following: The tile entrance sloped toward the sidewalk. In order to make the stand of the scales level, the front portion thereof, "almost contiguous with the public sidewalk," was raised an inch or more. The back portion thereof "was flush with the entrance walkway."

No facts are alleged: (1) as to the size and appearance of the scales; (2) as to the size and layout of the store entrance; (3) as to the space available as passageways in portions of the entrance elsewhere than in close proximity to the scales; (4) as to whether the scales were in some manner concealed or were in plain view; (5) as to whether any person other than plaintiff was using the entrance on the occasion of plaintiff's injury.

In Smith v. Emporium Mercantile Co., 190 Minn. 294, 251 N.W. 265, 266, the plaintiff fell when her foot struck a corner of a movable platform, used for displaying merchandise, which protruded into an aisle. The court said: "Where an ordinary device, *629 such as this platform, customarily used in stores for the display of goods, is placed in a well-lighted position, is plainly observable, with nothing to conceal its presence and outlines, and with sufficient passageways going by it, the shopkeeper should not be held negligent as to one heedlessly colliding therewith. (Citations) To hold otherwise would impose too high a degree of care upon a shopkeeper and in effect make him an insurer of the safety of customers."

Whether defendants breached their legal duty to plaintiff must be determined on the basis of the facts and circumstances existing on the occasion of plaintiff's injury. If, on other occasions, a person's ability to see the scales was obstructed or impaired, by crowded conditions in the entrance or otherwise, defendants' liability to a customer then injured by contact with the scales would be determined in relation to those circumstances and conditions.

Plaintiff, in her brief, contends that the facts alleged are sufficient to raise the inference "that the scales were momentarily obscured to plaintiff's vision by the crowd of people on the sidewalk and going to and fro in the entranceway to the defendants' place of business * * *." But we do not think any inference as to the presence or absence of persons in the entrance or on the sidewalk on the occasion of plaintiff's injury may be drawn from plaintiff's meager factual allegations.

Under the rules governing defendants' legal liability to plaintiff, stated above, we reach the conclusion that the facts alleged, nothing else appearing, are insufficient to support a finding that plaintiff's injury was proximately caused by negligence on the part of defendants. Hence, the demurrer was properly sustained.

Even so, the court was in error in dismissing plaintiff's action. The demurrer should have been sustained without prejudice to plaintiff's right to move for leave to amend her complaint. Citizens Bank v. Gahagan, 210 N.C. 464, 187 S.E. 580; Stamey v. Rutherfordton Electric Membership Corp., supra, 247 N.C. 647, 101 S.E.2d 814.

Obviously, if plaintiff's injury was proximately caused by defendants' negligence, she has a good cause of action. The defect here is the deficiency in plaintiff's factual allegations. Davis v. Rhodes, 231 N.C. 71, 56 S.E.2d 43, and cases cited. Hence, plaintiff may move for leave to amend in accordance with G.S. § 1-131. When a demurrer is sustained, the action will be then dismissed only if the allegations of the complaint affirmatively disclose a defective cause of action, that is, that plaintiff has no cause of action against the defendant. Mills v. Richardson, 240 N.C. 187, 190, 81 S.E.2d 409; Burrell v. Dickson Transfer Co., 244 N.C. 662, 664, 94 S.E.2d 829.

Defendants' contention that the facts alleged establish plaintiff's contributory negligence as a matter of law is untenable.

"In all actions to recover damages by reason of the negligence of the defendant, where contributory negligence is relied upon as a defense, it must be set up in the answer and proved on the trial." G.S. § 1-139. Where contributory negligence is the ground of objection, the demurrer will be sustained "only where on the face of the complaint itself the contributory negligence of the plaintiff is patent and unquestionable." Ramsey v. Nash Furniture Co., 209 N.C. 165, 169, 183 S.E. 536, 538, and cases cited. Defendants cannot rely upon plaintiff's failure to allege facts sufficient to negative contributory negligence. The facts alleged must affirmatively show contributory negligence as a matter of law.

The allegations that, as plaintiff left the store, she was "looking for her sister," and that, when she "spied" her sister, waiting for her in a parked car, she "headed in that direction," are insufficient to establish plaintiff's contributory negligence as a matter of law.

*630 While, as stated above, plaintiff did not allege, expressly or by implication, that her vision or ability to see the scales was obscured or impaired by other persons in the entrance or otherwise, it is equally true that she did not allege that the existing conditions were such that she saw or by the exercise of due care could have seen the scales and so could have avoided injury.

The portion of the judgment sustaining the demurrer is affirmed. However, the portion thereof dismissing the action is erroneous and should be stricken therefrom. It is so ordered. As so modified, the judgment is affirmed.

Modified and affirmed.