Porter v. . Niven

DeNNY, J. We do not think the evidence, when considered in the light most favorable to plaintiff, is sufficient to justify the submission of the question of defendant’s negligence to the jury. However, if the defend *222 ant was negligent in the location of its churn, so as to cause it to occupy a portion of the passageway, the plaintiff offers no explanation for his not having seen the churn. ITis own evidence discloses that it was about 30 inches high and a foot and a half or two feet in diameter, and that he didn’t dodge the churn because he didn’t see it, and yet he testified “There was plenty of light for me to see.” In the case of Hunt v. Meyers Co., 201 N. C., 636, 161 S. E., 74, cited by plaintiff, the evidence disclosed that the plaintiff went to the defendant’s store to buy merchandise and was directed to the basement department, which was poorly lighted and dark, and that plaintiff caught her foot in and stumbled over a stool that had been left in the aisle. The facts in the other cases relied on by plaintiff, Monroe v. R. R., 151 N. C., 376, 66 S. E., 315; Nicholson v. Express Co., 170 N. C., 68, 86 S. E., 786; and Leavister v. Piano Co., 185 N. C., 152, 116 S. E., 405, are distinguishable. In the instant case, apparently, the plaintiff pushed the screen door open with one of the milk cans which he was carrying, and simply took it for granted that there was no obstruction in the passageway, and failed to make any observation as to whether or not there was an obstruction in the passageway, when by his own testimony he could have seen the churn if he had looked. It appears from the evidence offered by the plaintiff that he failed to take proper care and precaution for his own safety. Harrison v. R. R., 194 N. C., 656, 140 S. E., 598. The judgment below is Affirmed.