Skipper v. Cheatham

Bobbitt, J. Are the facts alleged, considered in the light most favorable to plaintiff, sufficient to support findings (1) that defendants were negligent in maintiaining the scales in their store entrance, and (2) that isuoh negligence proximately 'Caused plaintiff’s injury? 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 ho 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. Green & Co., 236 N.C. 83, 72 S.E. 2d 33; Sledge v. Wagoner, supra. As stated by Rodman, J., in Harris v. Department Stores Co., 247 N.C. 195, 198, 100 S.E. 2d 323: “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. (Wash.), 41 P. 2d 1093, 1094. The cause of action consists of the facts alleged. G.S. 1-122; *710 Lassiter v. R. R., 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. Membership Corp., 247 N.C. 640, 645, 101 S.E. 2d 814. 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. Membership Corp., supra. As stated by Johnson, J., in Shives v. Sample, 238 N.C. 724, 79 S.E. 2d 193: . 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, ished 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 axe alleged except the following: The tile entrance sloped toward the «sidewalk. In order to make the «stand of the «scales level, the front portio«n thereof, "«almost contiguous with the .public sidewalk,” was raised «an inch «ox 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 clo«se proximity to the «scales; (4) as to whether the scales were in «some manner «eo«noealed «or were in plain view; (5) as to whether «any person other than plaintiff was using the entrance on the ocoasion o«f plaintiff’s injury. In Smith v. Emporium Mercantile Co. (Minn.), 251 N.W. 265, the plaintiff fell when her foot struck «a «comer «of a movable platform, used for displaying merchandise, which protruded into an aisle. The court «said: “Where «an ordinary «device, «such as this platform, customarily used in «stores for the display o«f goods, is placed in a well-lighted position, is plainly observable, with nothing to conceal its presence «and outlines, and with «sufficient piassageways going by it, the shopkeeper should not be held negligent as to one heedlessly colliding therewith. (Citations) To hold «o«therwise 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 *711 determined on the basis of lite 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 entraocaway to the defendants’ place of business . . .” But we do not think a-ny inference as to the presence or absence of persons in the entrance or on the 'sidewalk on the occasion of plaintiffs 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. Bank v. Gahagan, 210 N.C. 464, 187 S.E. 580; Stamey v. Membership Corp., supra, 647. 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 i®, 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. 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. Furniture Co., 209 N.C. 165, 169, 183 S.E. 536, 'and cases cited. Defendant® cannot rely upon plaintiff’s failure *712 4o allege facts sufficient to negative contributory negligence. The facts alleged must affirmatively shew 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 oar, she “headed in that 'direction,” are -insufficient to establish plaintiff’s contributory negligence as a matter of law. 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 trae 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 tire 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.