*1 755 N. O.] Company, Inc. Bohannon Stores arbiter. was one in tbe of an He also acting capacity impartial city lot. he became a witness of the Masonic When appraisers witness other Greensboro was to cross-examination subject any he Masonic lot show bias. The impeachment for and to testified to so but the difference proximity, exactly similar, If cannot on them. we error, had all facts before hold it or reversible. prejudicial record was brought which present case,
We do not think the evidence in the in the eases cross-examination, principle out on militates against Makely, v. Warren cited Greensboro. plaintiff, petitioner, city Archer, v. N. C., 361; Belding N. v. 88 C., 12; Threadgill, 85 Bruner Co., N. C., N. Brown v. Power 140 287; C., city the court below plaintiff, petitioner, Greensboro’s appeal,
Affirmed. BOHANNON, BOHANNON, CORA Friend, MRS. A. E. v. Her Next COMPANY, LEONARD-FITZPATRICK-MUELLER STORES Inc.
(Filed November, 1929.) Negligence A c—Construction and condition held to con- negligence stitute in this case. The owner of a store for the sale of an insurer merchandise is not safety therein, of its customers invitees but is liable resulting from failure to exercise care reasonable their premises; tending only while on the and where there is evidence injured plaintiff show that the while down the stairs of store a fall caused
n lying inches wide one-sixteenth of an inch above the wooden tread being step eight inches, the tread nine inches and the rise of the being feet, and the width hand-railing of the stair four with a on each side: Held, reasonably anticipated, could not have been but resulted accident, from an and defendant’s motion as of nonsuit should have been granted. Clarkson, dissenting J., opinion; Stacy, J., concurring C. in dissent. Appeal J., by defendant from McElroy, September Term, 1929,
Foesyth. Eeversed.
Action to recover for personal injuries to have been alleged of defendant. negligence alleged is the maintenance of a stair- complaint way in a occupied by defendant, for the use public,' alleges negligently constructed. IN THE SUPREME COURT. v. Stores *2 1 March,
On retail mer- 1929, defendant, a the corporation engaged a of a cantile under lease from the owner was in business, possession building the of N. C. It said building city Winston-Salem, occupied a store for On the second operated dry goods. and therein the sale of said Parlor.” means of floor of there was a The building “Beauty access to said Parlor” first or floor of said “Beauty from the ground had was a its un- building stairway. By lease, terms of the for use the dertaken to maintain said in a safe condition the stairway and Parlor.” customers of the “Beauty of The said are of steps stairway wood. Each has a step tread of nine and a rise of inches, inches. the front of each eight Across is a metal wide. The step surface each these the strips higher metal as it lies of an inch step one-sixteenth than the the extends over the step. surface of Each the ,an three-foUrths, next lower inch and step stairway about and back to of said metal strips curved the riser of the step. protect wear, is to the of each from and to thereby use is inside the persons stairway. the who the stairway and four There is hand-rail on each building, is about feet wide. a which is side of the Prom stairway. the first floor the platform, steps; are or nine between the first and second there floors, in a on the second the which is platform balcony there are steps. four She an of defendant. employee On was March, 1929, first floor had been of the located on charge hosiery department, of de employee months. had no duties as an for five She building, to the second which or to required stairway fendant ascend the she was hour of while During day, floor of the lunch building. stairway an from her duties as ascended employee, plaintiff released or patron as its went to Parlor” the second floor “Beauty and on and while Parloz,” in the “Beauty customer. After she had been served and was first fell she she was descending as follows: injured. testified After
“On March I was .a of the Parlor.” customer I had been I started gone up finished, work which had I the bottom fell. steps down the About five of the steps. steel piece to fall was that the What me piece higher left shoe. The steel was a fraction my heel of caught the heel part caught than the other wood part —the —and I stairway. holding as I was shoe, coming down my I carefully, I was down steps. banisters either side As I step, fallen on the stairway. stepped knew that others had my another making and
N. 0.] Stokes me up wood, comes fraction above the around. This was throwing fall I did not clean to the bottom of the my injuries. cause of I black to me. One step. and sat Then went got up everything came me to the back of the store employees helped store.”
All the at the that the metal evidence offered trial was to effect of an inch strips on the were about one-sixteenth than the and that tread each both wood, step, including witnesses, the wood and the metal inches. One of strip, plaintiff’s nine carpenter forty as follows: years experience, testified “I inwas couple store times while they were those and I saw the or four three didn’t days ago. examine them but had very much, occasion to go up down stairway once To twice. the best of my knowledge have *3 tread of about nine inches, and a of rise about inches. judge that the metal strip is about inches wide. is they That the way them on. I usually put never whether noticed the of the metal each was than of the back it.” This action was and tried begun in the Forsyth County Court before J., and a Efird, jury. The issues submitted to the at the trial were n answeredas follows: “1. Was the plaintiff injured the as by negligence defendant, in ? alleged the Yes. complaint Answer:
2. Did own plaintiff, the her contribute by negligence, to the in the answer? alleged Answer: No. if the damages, any, What to of plaintiff entitled recover $1,000.” defendant? Answer:
From judgment verdict, defendant appealed Superior Court of Forsyth duly errors based on County, assigning exceptions taken the trial. during Upon hearing of said appeal, the Superior defendant’s Court,
exceptions were sustained. The of judgment was Court County affirmed. of judgment From the Superior Court, affirming the judgment defendant County Court, appealed Supreme Court. W. L. Morris plaintiff.
Raiclvff, Hudson & Ferrell for defendant. J. Connor, The defendant on its appeal to this Court contends was error judgment the Superior Court of Forsyth and that for this County, error the judgment said should be reversed. On its appeal the judgment of the County Court to the Superior IN THE SUPREME COURT. v. Stobes the refusal
Court of as error Forsyth. County, assigned defendant at the close Court to allow its motion for as of County judgment nonsuit, dismiss the evidence, all the and in with said motion to accordance by Superior action. This not sustained assignment of error was defendant The County Court. Court affirmed. judgment therefrom appealed Court and excepted Superior to this Court.
The defendant’s contention offered the trial evidence Court, in the most favorable to Forsyth County light plaintiff, viewed is not to sustain that the plaintiff’s allegation injuries sufficient which she seeks to this were caused action, by recover by It is conceded defendant, is thus negligence presented that there fall on the stair- tending plaintiff’s was evidence show caused, testified, in the defendant was as she way building by occupied the edge by by heel of shoe this fall. injuries of a that her were caused said stairway, It facts defendant is liable ease, is admitted that damages, injuries, which resulted from her main- failing of defendant use by in a condition for reasonably tain the safe the second located on customers of the from the a lease defendant, floor of the occupied .under the defendant decided, therefore, whether owner. as all negligent maintaining were constructed the evidence tends to show the complaint alleged The negligence the owner the building. the public, for use by the maintenance *4 strips, that metal constructed, in with which were steps negligently that the surface with the result are laid wide, upon the steps. remainder than the surface strips higher the said is is one- strips the metal that surface of All the evidence tends show of the remainder of the sixteenth of an inch than the surface steps. it should steps the construction of the respect stairway,
With metal be nine inches, including noted that the tread of each is back of edge thus the distance leaving strip, that inches; also, the rise the next seven step, step above, not exceed on each which does stairway, hand-rails were side placed and was con- building, in inside the stairway four feet is width. the first occasion to for who have only by structed use persons floor of the building. the second to the first second and from in steps stairway Plaintiff contends the construction maintaining was negligent that defendant alleges She negligent. N. 0.] Stores ¶.
(cid:127)stairway witb. tbe constructed for use negligently by customers of tbe in that tbe exercise by defendant care strip reasonable could have foreseen that tbe of tbe each of tbe than of tbe would steps, being higher tbe remainder catch probably tbe heel’of tbe shoe of a tbe person descending from tbe second such injured. and cause .to fall person
Plaintiff bad been employed by defendant for five months prior day which she was injured. this time she worked During only first floor. She bad no duties reason of her employment by required up to the second build floor ing. bad, however, gone up Parlor” twice during using time that purpose. She testified that she knew that others bad fallen on the She did how testify, ever, any person other than herself bad ever fallen on the stairway because the heel of the shoe of such bad been the metal person caught by any nor stairway, testify did she defend ant knew that person bad fallen on any to the date stairway prior on which she fell. There was no evidence to show that tending any per son other than the plaintiff, while bad fallen ascending stairway, because bis or her heel bad been one of the metal caught by strips.
Tbe of the owner or liability occupant of a building used as a store for the sale of to a merchandise customer or other invitee for result damages ing from injuries sustained while such customer or other invitee was and caused building, some condition therein, founded principles which the law of predicated. Leavister v. Piano Co., N. C., 152, E., S. 405. Tbe owner or occupant the build ing is not an insurer of the bis safety of customer or other invitee, while Mullen building. v. Sensenbrenner 260 S. 33 A. L. (Mo.), E., 982, R., He is liable when were resulting caused bis failure to exercise reasonable care to of bis customers or other invitees. These principles apply the instant and in case, accordance therewith we are of opinion that the evidence offered at the trial in the Forsyth County Court fails to show that de fendant was negligent maintaining
by the owner of the building, on which metal placed so' that surface the strip on each step was one-sixteenth of an inch higher than the surface the step between the of the metal back of the step. Plaintiff’s fall while descending the caused stairway, the heel of her shoe on the metal strip was negligence of defendant. Tbe fall was an accident, which defendant *5 Co., 163 is not liable. v. Pendergrast Traction N. C., 553, E., 79 S. Clothier, 984; v. Chapman Pa., 394, Atl., IN THE COURT. SUPREME v. Stores is reversed. Forsyth County Court of Superior judgment that be court with direction
The action is remanded of this Court. entered in accordance with the decision Reversed. mercan- a retail had corporation Defendant J., dissenting: Clarkson, a had also with same in connection
tile business on the first “Beauty steps going up second floor. The “Beauty Parlor” rise and a Each had a tread of nine Parlor” were of wood. was a metal of each step inches. Across the front they lay upon each of these metal inches wide. The surface of than the surface of an inch higher was one-sixteenth of each the metal was to protect step. from wear. gone up Cora had Bohannon, young girl, Parlor,” piece and on down the coming shoe. She was down the in the heel her left step caught testified, as she knew others had fallen on carefully, a fraction above the which comes up steel caught piece “My free charge under a found, jury wood.” She sustained that she was of negligence, that defendant was error, guilty from for her and awarded negligence, guilty contributory injuries. submitted to have been sufficient evidence to I think there was it be liable for negligence, may In order that the defendant jury. able to antici- or even been contemplated, that it could have necessary sus- injury or the precise which ensued consequence pate particular reasonable care if the exercise It is sufficient tained by plaintiff. result would injury that some have foreseen might the defendant nature injurious a generally consequences omission or its act or not required it is It is said also that expected. have been might could it is sufficient foreseen; it should be injury particular wrongful harm follow might reasonably anticipated Rinehart, 192 N. C., Hall v. act. an less than a sixteenth of knife is ordinary of an the blade
Perhaps of steel tacked on this record have here it will cut. We inch, yet an one-sixteenth of edge, admittedly leaving sharp on wooden the young girl’s The heel of a knife blade. like inch above the in- thrown and seriously and she was blade sharp shoe to determine care for the it due I think jured. and not for instructions, under proper causé, and It was a known in the matter. no accident can see that injury might anticipate reasonably could known cause
N. FALL TEEM, 1929. O.] Gregory.
Cheek v. follow. Then, again, frequent use the steel becomes loose more liable to have the shoe heel thrown. person it and the All this was a matter due care for the and not a Court involving jury decide. In this cause a learned and in the court experienced judge below the evidence thought sufficient to to a and twelve go jury jurors— selected under the law as men intelligence and moral character— found the defendant free guilty young girl blame. ascer- jury system court, a coordinate and arm of the right
tain facts, and one of the agencies few left to pass rights man. average Defendant owed as an invitee to see duty the sharp, knife-like steel was a manner tacked down to the floor such piece or blade would not catch a shoe heel and throw person. The throw steel tacked down would be firm and would naturally person the shoe heel all of due caught. least, At this is care for the and not
Stacy, C. J., concurs dissent. T. E. CHEEK CHEEK, His ELIZABETH TAYLOR Wife, N. J. M. GREGORY et al.
(Filed November, 1929.) residuary 1. Will E property a —In absence of clause not devised descends to heirs law. general residuary In will, realty the absence of a clause in a owned the testator at bis death and not devised in will descends to his heirs intestacy. at law as in case of 2. Will E b —In personalty only case held: “Balance” refereed realty and as to certain testator died intestate. disposing property by Where a testator in of his will devises certain of his lands his widow for life and various other items certain other mother, sisters, subsequent lands his brother and and then item foregoing my personal property my moneys “after the I want and all equally son, hand” item “if besides divided between his wife and followed another is over ten thousand dollars each for him and his mother property named, my real estate and the balance I wish to Held, brother and sisters and their children”: the word “balance” thus personal property, residuary used being refers and there no devised, clause after the life estate the lands thus devised to the son testator, property the sole heir at law of the as to this testator having died intestate.