Hargrove v. Plumbing & Heating Service of Greensboro, Inc.

ARNOLD, Judge. Both defendants assign error to the denial of their motions for directed verdicts, judgments notwithstanding the verdict and new trials. These motions require the trial court to consider the evidence in the light most favorable to the non-moving party, Hargrove, to resolve all conflicts in his favor and to accept all inferences favorable to him. Teachey v. Woolard, 16 N.C. App. 249, 191 S.E. 2d 903 (1972). The evidence most favorable to Hargrove tends to show that Plumbing and Burlington controlled the area in front of Burlington’s oil tanks, that the area was within the scope of the invitation to drivers such as Hargrove, and that these drivers walked across this area while performing their duties. The site of the accident was normally level, grassy and unobstructed. However, Plumbing had dug a hole there. The evidence further shows that Burlington knew, and Plumbing should have known, that the hole contained boiling water, but neither Plumbing nor Burlington maintained an adequate barricade around the hole. Finally, the evidence tends to show that the accident occurred at night,, that the area was dimly lit, that a fog of steam covered the hole, that the steam was ordinarily present around the tanks, that Hargrove, based on previous visits, had reason to expect that the area in front of the oil tanks was level and free of hazards; and that he had no knowledge of the hole and did not see it before falling into it. Based on these facts there is a question presented on the issue of defendants’ negligence. Burlington and Plumbing argue that plaintiff was contributorily negligent in failing to see two open and obvious conditions which he should have seen and avoided, the hole and the steam. They contend that there was no duty to warn plaintiff of such obvious dangers, and therefore they were not negligent. We disagree. The hole was open, unmarked ánd shrouded in fog at night. We cannot say as a matter of law that the hole- was an *5 obvious hazard. While the steam was obvious, in itself it was not dangerous. The question is. whether plaintiff was contribu-torily negligent as a matter of law by walking into the steam. A person must use due care for his own safety. If he fails to do so and is injured he is contributorily negligent and cannot recover from others whose negligence also caused his injuries. A reasonable person must look out for and discover reasonably foreseeable hazards since the law is unable to protect those who have eyes and will not see. Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598 (1927). Defendants cite many cases in support of this rule, but these cases are distinguishable from the case before us. In Holland v. Malpass, 266 N.C. 750, 147 S.E. 2d 234 (1966), plaintiff, an automobile mechanic, fell over a jack that was on the garage floor in the áisle between cars. Plaintiff had walked through this aisle several times that day, but someone had placed the jack there while he was not looking. Plaintiff admitted that he knew, as an experienced mechanic, that garage workers leave tools lying on the floor. On the facts, the court said: “The plaintiff’s evidence fails to support any action by the defendant or his employees creating a hazard which one walking in the work space of a repair garage should not reasonably expect and watch for. It also shows that the plaintiff, an experienced garage worker, failed to look before he stepped where he should have anticipated some obstruction was likely. Had he done so he would have seen the [jack] in the well-lighted space. The invitee must use reasonable care, commensurate with the normal activities of the type of establishment whose invitation he accepts.” 266 N.C. at 752, 147 S.E. 2d at 236. As Holland indicates, a person must be on the lookout for reasonably foreseeable hazards. A jack on a garage floor is common; its presence and the danger it creates are reasonably foreseeable. On the other, hand, an unmarked hole in a well travelled area is abnormal. Since the hole is abnormal the invitee has no reason to foresee its presence and no reason to be on the lookout for it. Hargrove had no reason to expect the hole, and since he knew from prior experience that the area in front of the oil tanks was level and grassy, it was not unreasonable as a matter of law for him to walk through the rising steam. *6 Doggett v. Welborn, 18 N.C. App. 105, 196 S.E. 2d 36 (1973), cert. den. 283 N.C. 665, 197 S.E. 2d 873 (1973), relied on by defendants, also indicates that a plaintiff is con-tributorily negligent where he confronts a reasonably foreseeable danger. In that case, plaintiff drove her car into a dense cloud of smoke that covered the highway. She knew that a pickup truck had preceded her into the smoke. She knew that other vehicles were on the road. Because of her knowledge the court held she was contributorily negligent as a matter of law in colliding with the truck ahead of her. She blindly drove into smoke concealing a reasonably foreseeable hazard, and in this she was negligent. In the case at bar plaintiff had no knowledge of the hole which was hidden in the steam. Defendant Plumbing also appeals from the judgment allowing Burlington to recover indemnification. The agreement, as pertinent to this appeal, is as follows: “It is understood and agreed that in doing or causing this work to be done, you [Plumbing] are acting in the capacity of an independent contractor. You shall furnish all labor materials, equipment and supervision, except as may be otherwise noted in this contract. You assume entire responsibility for all injuries sustained or damages arising in the course of said work, or from the use or control of our equipment by you, regardless of its condition, and we shall not be liable for any such injuries or damages.” (Emphasis added.) Plumbing’s position is that the above language does not constitute an indemnity agreement but simply establishes the. relationship of contractee — independent contractor as opposed to that of master and servant. In the alternative Plumbing argues that the agreement was a mere exculpatory clause intended to exculpate Burlington from injuries arising to Plumbing’s workers. We accept Burlington’s position that the language in the agreement does constitute an indemnity agreement requiring Plumbing to indemnify Burlington for any liability arising as a consequence of the work being performed by Plumbing for Burlington. In Markham v. Duke Land and Improvement Co., et al, 201 N.C. 117, 158 S.E. 852 (1931), the City of Durham allowed Duke to install glass bricks in a city sidewalk to illuminate a *7 basement beneath a Duke building-. Duke agreed to “relieve the city from all responsibility and all liability” that might result from the construction. Seven years later a tenant occupied Duke’s building, and at that time a pedestrian was injured by stepping in a hole in the sidewalk. In a suit against the tenant, the city and Duke, the jury found the tenant primarily liable and the city secondarily liable. Our Supreme Court upheld the trial court’s determination that the agreement between the parties was an indemnity contract requiring Duke to reimburse the city. The language of the agreement in Markham is essentially the same as the language we must construe. Duke agreed to “relieve the city from all responsibility and all liability” whereas in the agreement before us Plumbing agreed to “assume entire responsibility” so that Burlington “shall not be liable” for any injuries or damages during the course of the work. The plain language constituted an indemnity agreement. Plumbing next contends that if it be conceded there is an indemnity agreement it does not indemnify Burlington from the consequences of its own negligence towards third persons. Plumbing argues that the plain import of the language is that Burlington shall not be liable for injuries or damages arising during the course of the work to Plumbing’s employees. We cannot accept such a narrow construction of the agreement, but find that it provides for full indemnity for all negligence, including any negligence by Burlington towards third persons. We are “cognizant of the fact that in the ordinary case the occasion for [the indemnitee] seeking indemnity would not arise unless it had been guilty of some fault, for otherwise no judgment could be recovered against it.” Beachboard v. Southern Railway Co., 16 N.C. App. 671, 679, 193 S.E. 2d 577 (1972), cert. den. 283 N.C. 106, 194 S.E. 2d 633 (1973). The language employed requires Plumbing to indemnify Burlington for injuries sustained by third parties injured by the negligence of Plumbing or Burlington, or by Plumbing and Burlington. Ultimate liability by Plumbing to Burlington is in contract, not tort, and thus we need not consider Plumbing’s contention that any negligence on its part was insulated by the subsequent negligence of Burlington. *8 We have reviewed all the assignments of error by both appellants, including those directed to the trial court’s charge to the jury. We find no error prejudicial to either appellant. No error. Chief Judge Brock and Judge Parker concur.