Berger v. Cornwell

132 S.E.2d 317 (1963)

260 N.C. 198

Anna BERGER, Plaintiff, v. James I. CORNWELL and Elizabeth A. Cornwell, trading and doing business as Cornwell Animal Hospital, Original Defendants, and J. C. Soesbee and Blue Bird Taxi Company, Inc., Additional Defendants.

No. 95.

Supreme Court of North Carolina.

September 18, 1963.

*318 Parker, McGuire & Baley, Asheville, for plaintiff-appellant.

Uzzell & DuMont, Asheville, for defendant-appellees.

PER CURIAM.

Defendants Cornwell owed plaintiff, an invitee, the legal duty to maintain their parking area in such condition as a reasonably careful and prudent proprietor woud deem sufficient to protect patrons from danger while exercising ordinary care for their own safety. Sledge v. Wagoner, 250 N.C. 559, 109 S.E.2d 180.

*319 All the evidence tends to show that the place where Soesbee parked the taxi was shaded by a pine tree hedge and was lower than other portions of the parking area. There was evidence tending to show that, in the shaded area where Soesbee parked, there were icy spots difficult to see against the background of stone and gravel; that defendants Cornwell gave no warning of any dangerous condition on account of ice; that defendants Cornwell did not spread ashes, salt or other materials on any part of said parking area; and that plaintiff slipped on ice and fell. Plaintiff testified she did not observe or otherwise detect any spots or patches of ice on the parking area before she fell. Indeed, her testimony was to the effect that, in walking from the taxi to the hospital entrance and in returning from the hospital entrance to the taxi, she did not look down on the ground.

On January 31, 1961, in the Asheville area, while the streets and highways were clear or "comparatively clear," there was ice on walkways, sidewalks and shoulders of the highways.

The evidence tends to show there were patches of ice here and there in the large parking area, principally in the shaded portion thereof. However, the only reasonable inference to be drawn from the evidence is that portions of the parking area were free from ice and that persons exercising due care for their own safety could and should have observed and used such portions of the parking area. Hence, if the evidence were considered sufficient to establish defendants Cornwell were negligent as alleged, plaintiff's testimony, in our view, suffices to establish her contributory negligence as a proximate cause of her fall and injuries and to bar a recovery.

We do not perceive that the admission of the portions of said cross action offered by plaintiff would have been of benefit to plaintiff in respect of the question of nonsuit. Indeed, the facts alleged therein tend to show that whatever dangerous conditions in respect of icy spots or patches may have existed in the area where the taxi parked could be readily observed and avoided by persons exercising due care for their own safety.

Having reached the conclusion that the judgment of involuntary nonsuit should be affirmed, and since no new questions of law are presented, we deem it unnecessary to set forth with particularity the testimony of each of the witnesses offered by plaintiff.

Affirmed.