Fearing v. Westcott

197 S.E.2d 38 (1973)

18 N.C. App. 422

Martha Davis FEARING v. George T. WESTCOTT, Jr. t/a Casino Quizo Nags Head, N. C.

No. 731SC219.

Court of Appeals of North Carolina.

June 13, 1973.

*40 Twiford, Abbott & Seawell by Russell E. Twiford and Christopher L. Seawell, Elizabeth City, for plaintiff appellant.

Leroy, Wells, Shaw, Hornthal & Riley by Dewey W. Wells, Elizabeth City, for defendant appellee.

VAUGHN, Judge.

The only question presented is whether the court erred in granting defendant's motion to dismiss.

Plaintiff first argues that there was evidence to support a finding that defendant breached a duty owed to plaintiff. A patron at a Bingo parlor is an invitee to whom the proprietor owes a duty to exercise ordinary care to keep his premises in a reasonably safe condition and the proprietor is not an insurer of the safety of his patrons. Graves v. Order of Elks, 268 N.C. 356, 150 S.E.2d 522. It is a question of law for the court whether there is sufficient evidence to support a finding that this duty was violated and the question of whether the evidence does show a breach of the applicable duty is for the trier of the facts. In the present case, the judge was trier of the facts.

Rule 41(b) provides procedures whereby a judge sitting in a nonjury case can render judgment against a plaintiff "not only because his proof has failed in some essential aspect to make out a case but also on the basis of facts as he may then determine them to be from the evidence before him." Helms v. Rea, 282 N.C. 610, 618, 194 S.E.2d 1, 6. When a Rule 41 *41 (b) motion is made at the close of plaintiff's evidence, the judge may decline to render any judgment until the close of all of the evidence, as was done in the present case. "As trier of the facts, the judge may weigh the evidence, find the facts against plaintiff and sustain defendant's motion at the conclusion of his evidence even though plaintiff has made out a prima facie case which would have precluded a directed verdict for defendant in a jury case." Helms v. Rea, supra, at pages 618-619, 194 S.E.2d at page 7. The judge's evaluation of the evidence pursuant to a Rule 41(b) motion is to be conducted free of any limitations as to the inferences which a court must indulge in favor of plaintiff's evidence on a motion for a directed verdict in a jury case. Bryant v. Kelly, 10 N.C.App. 208, 178 S.E.2d 113, reversed on other grounds, 279 N.C. 123, 181 S.E.2d 438. In the present case, Judge Cowper made the following findings of fact pursuant to Rule 52(a)(1) as required by Rule 41(b).

"(a) On the evening of 2 August 1968 the plaintiff was on the defendant's premises as a business invitee, seated on a stool playing a game in the nature of Bingo. (b) While so seated the plaintiff fell to the floor and sustained injury. (c) On the occasion in suit the seating arrangements for customers on the defendant's business premises were being maintained in a reasonably safe condition; there was no defect in the stool on which plaintiff was seated which might have caused her fall or which could have been discovered by defendant in the exercise of reasonable care. (d) The plaintiff's fall was not caused by any negligent act or omission of the defendant."

The court then proceeded to the conclusions that plaintiff was not injured by the negligence of defendant and that plaintiff had shown no right to relief. "Where, as in the present case, the trial court as the trier of the facts has found the facts specially, such findings are conclusive upon appeal if supported by competent evidence, even though there may be evidence which might sustain findings to the contrary." Bryant v. Kelly, supra, at page 213, 178 S.E.2d at page 116. Judge Cowper's findings are supported by the evidence and we hold that the facts found support the conclusions of law and judgment.

Plaintiff's second argument, to the effect that the doctrine of res ipsa loquitur is applicable to the facts of this case and, if applicable, is sufficient to defeat defendant's motion for involuntary dismissal and carry the case to the trier of fact, is without merit. The doctrine of res ipsa loquitur is not applicable in situations where, as in the present case, "`. . more than one inference can be drawn from the evidence as to the cause of the injury.. . .'" Lane v. Dorney, 250 N.C. 15, 108 S.E.2d 55. Even where applicable, that doctrine merely takes the case to the trier of the facts and permits, but does not compel a finding of negligence. Here the judge sat as trier of the facts. He passed upon the credibility of the witnesses, weighed the evidence, considered what inference might be drawn therefrom and made his findings thereon.

Affirmed.

CAMPBELL and PARKER, JJ., concur.