Ryder v. Benfield

HEDRICK, Judge. First, defendant assigns error to the denial of his timely motions for a directed verdict and for judgment notwithstanding the verdict. Defendant argues that the evidence fails to disclose any breach of duty on his part. To the contrary, he asserts, the evidence shows contributory negligence as a matter of law “because [plaintiff] was or should have been aware of the condition which he alleged resulted in his injury.” *284 In ruling on defendant’s motions for a directed verdict and for judgment notwithstanding the verdict, the test is whether the evidence was sufficient to entitle plaintiff to have the jury consider it. Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E. 2d 396 (1971). To determine this question, “all evidence which supports plaintiffs claim must be taken as true and viewed in the light most favorable to him, giving him the benefit of every reasonable inference which may legitimately be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in his favor.” Maness v. Fowler-Jones Construction Co., 10 N.C. App. 592, 595, 179 S.E. 2d 816, 818, cert. denied, 278 N.C. 522, 180 S.E. 2d 610 (1971). The issues thus framed for our resolution in this case are: Did plaintiff offer any evidence which, when considered in accordance with the above test, tends to prove that his injuries were proximately caused by the negligence of the defendant Benfield, and does the evidence establish as a matter of law that the plaintiff failed to exercise the requisite degree of ordinary care for his own safety? We are of the opinion that the evidence was such as to permit different inferences reasonably to be drawn therefrom, and, therefore, both questions were properly submitted to the jury. The parties stipulated before trial to the fact that plaintiff was an independent contractor. When he came onto the defendant’s premises to pour the concrete shelf, he was also an invitee to whom defendant owed a duty of “due care under all the circumstances.” Spivey v. Babcock & Wilcox Co., 264 N.C. 387, 388, 141 S.E. 2d 808, 810 (1965). Specifically, the duty owed by the defendant contractee has been described as follows: One going upon another’s property as an independent contractor ... is an invitee to whom the property owner is liable for an injury occasioned by an unsafe condition of the premises encountered in the work, which was known to the property owner but unknown to the injured person. Generally speaking, an employer owes a duty to an independent contractor ... to turn over a reasonably safe place to work, or to give warning of dangers. 41 Am. Jur. 2d, Independent Contractors § 27 (1968). See also Deaton v. Board of Trustees of Elon College, 226 N.C. 433, 38 S.E. 2d 561 (1946). *285 Viewing the evidence in the instant case in the light most favorable to the plaintiff, it appears that defendant was informed on at least two occasions by at least two different individuals that a retaining wall behind which fill dirt was to be poured should be braced. Reasonable men could draw a logical inference therefrom that the defendant was aware that failure to brace such a wall would create a dangerous or unsafe condition. Moreover, that defendant knew the wall had not been braced could also reasonably be inferred since he owned the premises, conducted his business there, planned the renovations to the basement, and hired all the work done. There is no indication in plaintiff’s evidence, and defendant has not come forward with any proof, from which one could conclude that plaintiff was warned of the absence of bracing in the wall. Thus, one justifiable conclusion to make is that plaintiff reasonably “assumed” the wall had been braced, especially in light of the evidence that defendant told plaintiff he would have the wall braced. We believe this evidence presented a question for the jury to decide whether defendant’s failure to brace and to warn constituted actionable negligence and, further, whether such negligence, if any, was a proximate cause of the plaintiff’s injuries. We next consider the defendant’s contention that, regardless of whether he failed to exercise ordinary care, the plaintiff is barred from any recovery because plaintiff was contributorily negligent as a matter of law. Only when no other than this one conclusion reasonably can be drawn from the evidence is contributory negligence properly held proved as a matter of law. Spivey v. Babcock & Wilcox Co., supra. Although we agree that some evidence was introduced from which the jury could have concluded that the plaintiff failed to exercise ordinary care for his own safety, we are not persuaded that the evidence was sufficient to compel that conclusion as a matter of law. Thus, we hold that the court did not err in refusing to grant the defendant’s motions for directed verdict and judgment notwithstanding the verdict. By assignments of error numbers 4, 5 and 6, based on numerous exceptions noted in the record, defendant contends that the court erred in allowing plaintiff’s expert witness, Rowe, to answer certain hypothetical questions regarding his opinion as to what caused the wall to fall. Defendant first argues that the question itself was “seriously deficient” for the reason that it did *286 not contain all the essential facts. The hypothetical question complained of in essence sought the witness’ opinion of whether the wall was “properly constructed” if the jury should find by the greater weight of the evidence that a wall made of eight-inch cinder blocks and approximately six to seven feet high was constructed in the defendant’s basement; that the wall was back-filled, but not braced; that the backfilled space between the old dirt wall and the new concrete wall was two to four feet wide, and the space between the top of the wall and the first floor joist was about four feet; that the wall was not tied to the floor; and that the wall fell while a concrete cap was being poured on its top. Over objections and motions to strike, the witness testified that, in his opinion, the wall was not properly constructed because it lacked bracing of any kind. The rule with respect to the form of hypothetical questions is that the question must contain all the material facts necessary to enable the expert to express an intelligent and reliable opinion. “Although it is not necessary to incorporate all of the facts, the trial judge may properly exclude the witness’s answer if the question presents a picture so incomplete that an opinion based upon it would obviously be unreliable.” 1 Stansbury’s N.C. Evidence, Opinion § 137 (Brandis rev. 1973). [Emphasis in original.] Moreover, the question should not include extraneous facts, nor should it assume those facts sought to be established. And where the evidence is conflicting as to any essential fact, the assumption of one version over another is not prejudicial. 6 Strong’s N.C. Index 3d, Evidence §§ 49.1, 49.2 (1977). In this case the witness Rowe was qualified as an expert “in the field of masonry construction and as a brick and block mason.” Judging from the evidence in the record, we are satisfied that the question contained every essential fact brought out at trial and plainly enabled this witness, who was an expert in the field, to form a safe, reliable and intelligent opinion as to whether the retaining wall in this case was or was not properly constructed. We note, furthermore, that much of which defendant now complains was rendered inconsequential, if not moot, by counsel’s rephrasing of the question to take care of defendant’s objections, and that many of defendant’s suggestions on appeal concerning “facts” which should have been included in the question would have produced error had they been so incorporated, *287 since there was no evidence, regarding, for instance, the type of mortar used or the make-up of the sand. See Stansbury, supra. We hold, therefore, that the question was sufficiently composed, and no error flowed from its admission. Second, defendant charges that this expert witness “was not qualified to testify about causation.” It suffices to say that the qualification of experts is a matter “ordinarily within the exclusive province of the trial judge”, Stansbury, supra at § 133, and that, once the court decides the witness is an expert, he is properly allowed to give his opinion as to causation. Indeed, provided the question is correctly formed — which is not and could not be disputed here — the expert’s foremost function is to enlighten the jury as to the appropriate inferences to be drawn from what happened, including what probably caused the incident to happen. We find this assignment of error wholly meritless. Finally, defendant contends that he was entitled to a credit against the judgment in the amount of $2,000, the sum paid by the “joint-tort-feasor” Huffman. We agree. Where one tort-feasor has settled with the injured party, the other tort-feasor, who has gone to trial, is entitled to have the judgment reduced by the amount of the settlement. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E. 2d 769 (1970). We do not find it necessary to discuss the question of whether the trial judge had jurisdiction to amend the judgment once notice of appeal had been given. While the record indicates that the trial judge was aware at one time of the fact that plaintiff had taken a voluntary dismissal as to the defendant Huffman upon the payment of $2,000, it does not appear that this fact was called to his attention when he signed the judgment for the full $18,000.00. Regardless, the law is clear that [w]hen a release or a covenant not to sue ... is given in good faith to one of two or more persons liable in tort for the same injury . . .: (1) . . . it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it. . . . G.S. § IB-4. We think the ends of justice require that the amendment be made at this time. For that reason., this cause is remand *288 ed to the superior court so that court may amend the judgment to reflect the fact that $2,000.00 has been paid. The result is: In the trial we find no error. The cause is remanded to the suprior court for the entry of a judgment in accordance with this opinion. No error. Cause remanded. Judges CLARK and Martin (Harry C.) concur.