Clark v. Cleveland Drug Co.

Adams, J. The appellant’s brief is restricted to the question of the defendant’s negligence. It was no doubt prepared on the theory that the plaintiff entered the drug store as an invitee to whom the defendant owed the duty to exercise reasonable care; and to sustain this position the plaintiff relies on the general principle that the owner or occupant of premises who invites others to go thereon owes to such persons a duty in the exercise of due care to have his premises in a reasonably safe condi- *630 lion and to give warning of latent or concealed perils. Ellington v. Ricks, 179 N. C., 686; Leavister v. Piano Co., 185 N. C., 152. It is said in the brief of the appellee that the court held there was no evidence of negligence on the part of the defendant which should be submitted to the jury — a conclusion which may have been reached on the principle that the plaintiff, if an invitee at the time she entered the store, assumed, when she went into the prescription department for the purpose of using a private telephone, the character of a bare licensee, to whom the defendant was not liable for passive negligence. Monroe v. R. R., 151 N. C., 374; Money v. Hotel Co., 174 N. C., 508; Brigman v. Construction Co., 192 N. C., 791. From the appellee’s brief we derive the further information that the trial court held that the plaintiff, according to her own testimony, proximately caused or contributed to her injury by her own negligence. If this is true, it is immaterial whether she was an invitee or a licensee when upon the defendant’s premises. The plaintiff related the circumstances under which she was injured. By permission of the clerk she went back to the prescription department through a little lattice way, and the clerk turned on the light. She used the telephone and walked directly out into the passage that led to the front of the building. On the direct examination she said: “I walked over to the door, which I judged I came out of, opened the door and took a step into a dark abyss of a basement, total darkness.” And on the cross-examination she said: “After I stepped out of that lattice partition twelve or fifteen feet across I opened a door that led into the concrete basement; that is, I walked twelve or fifteen feet from the door that led out of the lattice work office and walked straight ahead of me toward the front of the store. I did not notice a prescription desk or counter there, only the two doors before me; they were directly in front of me, and one led into the basement. I could not say how close those doors were together; they may have been four or five feet apart. I opened only one of the doors. I saw both doors and they were facing toward the front of the store and were on the same line with each other. . . . I had no chance to look after I opened the door; it led into the basement; it was total darkness and I lost my balance. I did not stop to look as I opened the door.” The plaintiff testified that the space she entered after leaving the lattice partition was lighted sufficiently for her to see the two doors and that she walked to the door which she judged she had come through, opened it, and without “stopping to look as she opened the door” plunged into “total darkness.” It is perfectly obvious that her unfortunate injury resulted directly from her want of judgment or her want of care. Judgment Affirmed.