Gordon v. Sprott

Annotate this Case

57 S.E.2d 785 (1950)

231 N.C. 472


No. 98.

Supreme Court of North Carolina.

March 1, 1950.

*788 Sanford W. Brown, James W. Regan, Asheville, for plaintiff appellee.

Smathers & Meekins, Asheville, for defendants appellants.

WINBORNE, Justice.

The assignments of error presented on this appeal pivot on the exceptions to the rulings of the trial court in denying defendants' motions, aptly made, for judgment as of nonsuit. If it be conceded that there is sufficient evidence to support a finding by the jury that defendants were negligent in the respects alleged, it is clear that, as a matter of law, upon plaintiff's own testimony, she was guilty of negligence which was at least a proximate cause of the injury of which she complains. If a plaintiff's negligence is one of the proximate causes of the injury, it is sufficient to defeat recovery. It need not be the sole proximate cause. Moore v. Boone, N.C., 57 S.E.2d 783; Fawley v. Bobo, 231 N.C. 203, 56 S.E.2d 419; Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251; Parkway Bus Co. v. Coble Dairy Products Co., 229 N.C. 352, 49 S.E.2d 623, and numerous other cases.

Moreover, "In general a theater patron who was injured in a darkened theater must have exercised ordinary care for his own safety, and if he failed to do so he cannot recover notwithstanding the negligence of the theater operator." 143 A.L.R. 61, Annotation III(a).

And "where a person sui juris knows of a dangerous condition and voluntarily goes into the place of danger, he is guilty of contributory negligence, which will bar his recovery." Dunnevant v. Southern R. R., 167 N.C. 232, 83 S.E. 347, 348; Groome v. Statesville, 207 N.C. 538, 177 S.E. 638.

Applying these principles to the case in hand, and bearing in mind the allegations of negligence, limited to lack of light and lighting facilities, upon which she bases her cause, it is seen: Plaintiff voluntarily went to the balcony of the theatre. When she reached there, she "knew how to go" because she "had been there before",twice, she says. The condition of the balcony was known to her, though she had not "sat in that seat before". She knew that the rear row of seats was on an elevated plane, for, in entering, she says "I got up that little elevation all right". Again, she says, "I knew there was a place there because I stepped up". And when she entered the balcony she noticed "there was no light", and before she fell she noticed "there was no light". But in coming out it was light enough for her to see that those persons on the end seats of the rear row, that is, those next to the aisle, had gone out. Thus she knew or by the exercise of ordinary care she should have known that as she approached the end of the row, she was approaching the place of the elevation of which she knew.

And it may be noted that while plaintiff speaks of stepping into a hole, the allegations of her complaint, and her own testimony show clearly that it was no more than the space below the plane of the rear row of seats, where she sat, and the level of the aisle floor. And such is not alleged as negligence.

This case is distinguishable in factual situation from the cases of Drumwright v. North Carolina Theatres, Inc., 228 N.C. 325, 45 S.E.2d 379, and Mulford v. Cotton States Hotel Co., 213 N.C. 603, 197 S.E. 169, on which plaintiff, as appellee, relies, and is not controlled by the decisions there.

For reasons here stated, defendants' motions for judgment as of nonsuit should have been allowed. Hence, the judgment below is


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