Bullard v. Elon Dickens Construction Co.

MORRIS, Judge. Plaintiff, noting the evidence of defendant’s negligence, contends that the trial court erred in granting defendant’s motion for a directed verdict. We disagree. Judge Graham stated in May v. Mitchell, 9 N.C. App. 298, 300, 176 S.E. 2d 3 (1970), that “In determining whether a judgment directing verdict for the defendant may be sustained on the grounds of insuffi [486] cient evidence to show actionable negligence on the part of defendant or because the evidence' establishes the plaintiff’s contributory negligence as a matter of law, we are guided by the same principles that prevailed under our former procedure with respect to judgments of nonsuit. . . . All of the evidence which tends to support plaintiff’s claim must be taken as true and considered in the light most favorable to plaintiff, giving him the benefit of every reasonable inference which legitimately may be drawn therefrom .... And unless plaintiff’s own evidence so clearly establishes his contributory negligence as one of the proximate causes of his injury that no other reasonable inference may be drawn therefrom, the issue of contributory negligence is for the jury. ...” (Citations omitted.) Plaintiff’s own evidence, taken in the light most favorable to plaintiff, indicates that plaintiff was' contributorily negligent as a matter of law. The uncontroverted testimony presented by plaintiff shows that he failed to inspect the unit and only noticed the lack of adequate cross-member support after going up on the equipment and using it. He also stated that he remained on the scaffold while trying to add more nails to the cross-members and indicated that the safer and better method would have required leaving the scaffold and reinforcing the cross-members while standing on an adjacent and freestanding ladder. Plaintiff instead for the sake of expediency rendered the repairs while remaining on the scaffold. The long-standing general rule requires that the entry of directed verdict, is warranted “ ‘ . . . when it appears from the evidence offered on behalf of the plaintiff that his own negligence was the proximate cause of the injury, or one of them.’ ” Matheny v. Motor Lines, 233 N.C. 673, 681, 65 S.E. 2d 361 (1951). (Citation omitted.) Also see Raper v. Byrum, 265 N.C. 269, 144 S.E. 2d 38 (1965). Here all of plaintiff’s evidence indicates that his own negligence was a proximate cause of the mishap, and this contributory negligence, as a matter of law, bars plaintiff’s recovery. Every person bears “ 1 . . . the obligation to use ordinary care for his own protection, and the degree of such care should be commensurate with the danger to be avoided.’ ” Blevins v. France, 244 N.C. 334, 342, 93 S.E. 2d 549 (1956). (Citation omitted.) This plaintiff improvidently failed to take those steps which would have avoided the fall. [487] Thus the evidence “ . . . establishes plaintiff’s contributory negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom.” Leonard v. Garner, 253 N.C. 278, 280, 116 S.E. 2d 731 (1960). The directed verdict was properly granted. Affirmed. Judges Parker and Martin concur.