Hamilton v. Parker

DeNNY, C.J. Plaintiff’s sole assignment of error is to the allowance of defendant’s motion for judgment as of nonsuit at the close of plaintiff’s evidence. The plaintiff’s evidence clearly establishes the fact that the exit door in defendant’s store could not possibly have struck the plaintiff in the back in the manner in which she testified unless she stepped to her left as she entered through the right-hand door and placed herself in the arc of the exit door as it rebounded when released by the bag boy, Rickey Falich. In the case of Watkins v. Furnishing Co., 224 N.C. 674, 31 S.E. 2d 917, the plaintiff sought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in the erection, operation and maintenance of “magic eye” doors in the entrance to its store building on Fayetteville Street in the City of Raleigh. The evidence tended to show that the plaintiff entered through the left side of the double door opening, where the door on the left side was partially open, and that the door suddenly closed and caught the plaintiff between said left door and the other door or door frame. On appeal from a judgment of nonsuit, this Court said: “There is a total lack of evidence of negligence in the erection, operation or maintenance of the 'magic eye’ doors. There is no evidence that the doors involved in the occurrence under investigation ever suddenly closed before said occurrence, or ever caught any one attempting to enter the store, notwithstanding the doors had been installed several months and thousands of customers had entered through the door openings. * * * “* * The owner of a store is not an insurer of the safety of those who enter his store for the purpose of making purchases, and the doctrine of res ipsa loquitur is not applicable. Before the plaintiff can recover he must, by evidence, establish actionable negligence. * * * “* * * Persons are held liable by the law for the consequences of occurrences which they can and should foresee, and by reasonable care and prudence guard against. * * *” In Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E. 2d 338, the plaintiff brought an action to recover damages for personal injuries allegedly sustained when he tripped over the bottom of a metal screen constructed on the outside of the exit door of defendant’s store. In sustaining a judgment as of nonsuit, entered at the close of all the evidence, this Court said: “The metal screen at the exit door was obvious to any ordinarily intelligent person using his eyes in an ordinary manner. No unusual conditions existed at the time. As plaintiff approached the exit door, the metal screen outside could be plainly seen through the glass door. At the time and place the metal screen did not constitute a hidden danger or an unsafe condition to plaintiff, an invitee [50] using the premises. Defendant was not under a duty to warn its customers of a condition which was obvious to any ordinarily intelligent person. * * * There is no evidence that the metal screen was improperly constructed or maintained at the time plaintiff fell.” In the case of Olson v. Whitthorne & Swan, 203 Cal. 206, 263 P. 518, 58 A.L.R. 129, the defendant maintained two swinging doors, used for the purpose of entrance and exit by patrons of the store. The plaintiff had made some purchases at the store and was proceeding to pass out through the swinging door to her right. Instead of continuing to pass through and beyond this door, she paused to hold the door open for a lady following immediately behind her. In doing so, the plaintiff stepped into the swing area of the left-hand door, through which a third lady was hastily proceeding. The rebound of the left-hand door struck plaintiff, and she thereby received the injuries complained of. The Court said: “* * * Swinging doors in buildings and stores are installed and maintained for the accommodation of those who have occasion to enter such buildings. The operation of such doors is not within the exclusive control of the owner of the building or the proprietor of the store. Customers take a very distinct part in their operation and are chargeable with the exercise of ordinary care in their use. * * * « * ^e think the court was justified in concluding that on any theory of defendant’s responsibility in the matter the plaintiff was * * * guilty of contributory negligence. * * * She testified that she was familiar with the operation of these particular swinging doors, had used them many times prior to the accident, and knew of their rebound. Notwithstanding this familiarity and knowledge, she placed herself in a position of danger for reasons which were entirely personal to herself. * * The evidence fails to disclose the breach of any legal duty which the defendant owed to the plaintiff.” In the instant case, while the plaintiff alleged that the defendant maintained such swinging doors in an unsafe and hazardous condition, she offered no evidence to support such allegation. Furthermore, she offered no evidence tending to show that the doors complained of were improperly constructed, or that they had any mechanical defect or were improperly maintained. Neither is there any evidence on the record tending to show that such doors were not the' customary type used in grocery stores, nor any evidence to the effect that a similar accident had occurred previously. In our opinion, the plaintiff has failed to establish actionable negligence against the defendant. Consequently, plaintiff’s assignment of error is overruled, and the judgment entered below is Affirmed.