Schwingle v. . Kellenberger

Clarkson, J. At the close of plaintiff’s evidence the defendants made a motion for judgment as in case of nonsuit. C. S., 567. The court below overruled this motion. At the conclusion of all the evidence the defendants renewed their motion, which the court below sustained. In this we can see no error. Speaking to the subject of the duty imposed upon owners to invitees, in Sams v. Hotel Raleigh, 205 N. C., 758 (760), it is written: “In order to establish a breach of duty so imposed the injured party must offer evidence tending to show (a) defective or negligent construction or maintenance; (b) express or implied notice of such defects,” citing authorities. In Brown v. Montgomery Ward & Co., ante, 368 (370-1), we find: “The duty of proprietors of buildings with respect to invitees on their premises has been frequently stated in the decisions of this Court. . . . (citing authorities). The consensus of these authorities is that the oceu- *580 pant of premises to wbicb others are invited to come for business or pleasure owes to such persons the duty to exercise due care to keep the premises in a 'reasonably safe condition and to give warning of any hidden peril. The proprietor, however, is not an insurer of safety, and when claim is made on account of injury caused by some article or substance on the floor along and upon which customers may be expected to walk, in order to justify recovery it must be made to appear that the proprietor either placed or permitted the harmful substance to be there, or that he knew or by the exercise of due care should have known of its presence in time to have removed the danger or given proper warning of its presence. . . . (citing authorities). As was said in Cummings v. R. R., ante, 127, 'There must be legal evidence of every material fact necessary to support the verdict.’ ” The injury to plaintiff was unfortunate and distressing, but we see no sufficient evidence for the case to be submitted to a jury. On the entire evidence there was no negligence on the part of defendants and perhaps contributory negligence on the part of plaintiff — from his own testimony. For the reasons given, the judgment of the court below is Affirmed.