Reese v. Piedmont, Inc. , 240 N.C. 391 ( 1954 )

Parker, J.

The mere fact that plaintiff fell and suffered injuries in leaving the rest room when she stepped from the higher to the lower level of the floor of the rest room raises no inference of negligence against the defendant. Fanelty v. Jewelers, 230 N.C. 694, 55 S.E. 2d 493; Harris v. Montgomery Ward & Co., 230 N.C. 485, 53 S.E. 2d 536; Fox v. Tea Co., 209 N.C. 115, 182 S.E. 662; Parker v. Tea Co., 201 N.C. 691, 161 S.E. 209; Bowden v. Kress, 198 N.C. 559, 152 S.E. 625.

The defendant was not an insurer of her safety while using the rest room. Barnes v. Hotel Corp., 229 N.C. 730, 51 S.E. 2d 180; Bowden v. Kress, supra; Bohannon v. Stores Co., 197 N.C. 755, 150 S.E. 356.

It was the legal duty of the defendant to exercise ordinary care to keep the rest room in a reasonably safe condition for the use of the doctors’ patients entering or leaving the rest room, and to warn them of hidden perils or unsafe conditions in entering or leaving, known to it, or ascertainable by it through reasonable inspection and supervision. Fanelty v. Jewelers, supra; Drumwright v. Theatres, Inc., 228 N.C. 325, 45 S.E. 2d 379.

We said in Benton v. Building Co., 223 N.C. 809, 28 S.E. 2d 491: “Any danger incident to the difference in the levels of the two floors necessitating the step down being obvious to one who looked, there was no duty resting upon the defendants to give notice thereof. The law imposes no duty upon one to give notice of a dangerous condition to another who has eyes to see and an unobstructed view of such condition, but fails to take time to see such danger. Generally, in the absence of some unusual condition, the employment of a step by the owner of a building because of a difference between levels is not a violation of any duty to invitees. Where a condition of premises is obvious to any ordinarily intelligent person, generally there is no duty on the part of the owner of the premises to warn of that condition. Sterns v. Highland Hotel Co., 307 Mass., 90, 29 N.E. 2d 721. There is no duty resting on the defendant to warn the plaintiff of a dangerous condition provided the dangerous condition is obvious. Mulkern v. Eastern S. S. Lines, 307 Mass., 609, 29 N.E. (2d), 919.”

“Different floor levels in private and public buildings, connected by steps, are so common that the possibility of their presence is anticipated by prudent persons. The construction is not negligent unless, by its character, location or surrounding conditions, a reasonably prudent person would not be likely to expect a step or see it.” Garret v. W. S. Butterfield Theatres, Inc., 261 Mich. 262, 246 N.W. 57. To the same effect see Boyle v. Preketes, 262 Mich., 629, 247 N.W. 763; Dickson v. Emporium, Mercantile Co., Inc., 193 Minn. 629, 259 N.W. 375; Cleary v. Meyer Bros., 114 N. J. Law 120, 176 A. 187; Haddon v. Snellenburg, 293 Pa. 333, 143 A. 8; Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So. 2d 366.

Plaintiff’s counsel candidly state in their brief: “This Court has frequently held that the mere existence of a step in a public place is not evidence of negligence.” However, plaintiff contends the real significance of her ease lies in the conjunction of all the facts and circumstances tending to show negligence on defendant’s part. Plaintiff argues: (1) The step down was unexpected; (2) the floor and walls on both levels were uniformly of the same color and materials; (3) the rubber mat did not cover the entire lower level, and did not indicate a step; (4) the upright part of the marble rising of the step did not connote a step; (5) there were no warning signs; (6) the room was inadequately lighted.

The plaintiff contends uniformity in colors and materials on two different levels has a camouflaging effect, and cites in support of her position Mulford v. Hotel Co., 213 N.C. 603, 197 S.E. 169; Touhy v. Owl Drug Co. (Cal.), 44 P. 2d 405 and Crouse v. Stacy-Trent Co. (N.J.), 164 A. 294.

The facts in the Mulford case are completely different. The plaintiff came out of a brilliantly lighted room into a dimly lighted basement. In that case the defendant’s negligence was admitted. Here it is denied. In reference to plaintiff’s contention, Seawell, J., in the opinion said in substance, flat surfaces, under lighting conditions, may present an appearance of continuity.

The Touhy case was decided by a district court of appeals. In the Touhy case and in the Grouse case there was uniformity of materials and colors on the different floor levels. In the instant case plaintiff’s evidence shows there was a large black rubber mat covering most of the floor of the lower level, and there was black and white tiling on the upper level. Uniformity of colors was not present as in the Touhy and Grouse cases.

There were three light fixtures in the room and a window at the back. Plaintiff fell in the morning. According to her evidence it was a bright, sunny day and some daylight came through the window. The light over the toilet stalls was burning. The light over the step was not, though there was a light bulb in the socket. There is no evidence as to whether this light was turned on or off, or whether it had burned out. If it had burned out, there is no evidence, as to when it did, other than the testimony of Mrs. Gartland that she was in the rest room immediately before plaintiff fell, and this light was not burning. The light fixture on the wall near the wash basin had no light bulb, but there is no evidence as to bow long tbis condition existed. Plaintiff’s evidence shows tbe rest room was for tbe use of tbe doctors on tbe second floor and tbeir patients. It is common knowledge that light bulbs burn out unexpectedly and frequently. There is no evidence that defendant caused tbe fixture near tbe wash basin to have no light bulb, or tbe condition that tbe light bulb over tbe step was not lighted. Upon plaintiff’s evidence tbe defendant cannot be charged with express or implied notice of such condition. Pratt v. Tea Co., 218 N.C. 732, 12 S.E. 2d 242; Revis v. Orr, 234 N.C. 158, 66 S.E. 2d 652.

Plaintiff entered tbe rest room in tbe morning. No wax, water, oil, trash or debris were on tbe floor. There were no defects in tbe top of tbe step or in tbe floor. On tbe lower floor level was a large black rubber mat covering a large part of tbe area, about 4 inches from tbe entrance and extending to within about 2 inches of tbe step. Tbe riser was of marble. Tbe upper level bad black and white tiling. 3 feet, 8 inches from tbe entrance door was a step 7% inches high. Tbe conclusion is unescapable that she was aware of tbe step, and stepped up to tbe higher floor level, for if she had not, she would have fallen or stumbled over tbe step going in. Tbe step was obvious. She bad eyes to see. Her safe passage from tbe entrance of tbe rest room to tbe toilet is an indubitable fact. In leaving she testified she looked down, and tbe light was so poor she couldn’t see very well, and did not observe any change in tbe floor level. She looked at tbe door, walked on, and fell at tbe step-down to tbe lower level. Tbe situation contained no element of a trap or bidden peril. Plaintiff bad been in tbis dimly lighted, as she contends, rest room for 10 or 15 minutes. Her eyes bad been adjusted to tbe light there. Tbe facts speak louder than the words of tbe -witness that there was enough light for her to see tbe step-down, if she bad looked, for there was light enough for her to see and step up 7% inches to tbe higher floor level in entering. Tbe defendant is not under a legal duty to prevent persons inattentive to tbeir safety from hurting themselves. Considering tbe evidence most favorably for tbe plaintiff, we think tbe defendant was not negligent on tbe evidence before us. Tbis does not conflict with Drumwright v. Theatres, Inc., supra, relied upon by plaintiff, because in that case tbe Court said: “There were no floor lights or seat lights in tbe aisle or on tbe steps. At least none were lighted.” __

Tbe fact that Dr. Walker’s nurse testified for the defendant that she assisted plaintiff into tbe rest room and back to tbe toilet, bolding her by tbe arm does not change our opinion. Plaintiff contends that if tbe nurse’s testimony is more favorable to tbe plaintiff, (even though it is in flat contradiction to hers) it must be accepted on tbe motion for nonsuit. We do not consider the nurse’s testimony more favorable to plaintiff on tbe question of defendant’s negligence, for even according to that testimony plaintiff must have known of tbe 7% step-up to the higher floor level, as she did not stumble or fall over it.

The plaintiff contends that the trial court erred in excluding evidence that the condition of the lighting in the ladies’ rest room existed for two days after plaintiff fell in the same condition as the day she fell, and that four days after plaintiff fell the light over the step was burning. The plaintiff contends that (1) it corroborates her testimony, (2) has a definite bearing on the regularity of inspection, and (3) on the assiduity of maintenance.

The exclusion of this evidence in so far as it corroborates plaintiff’s testimony was harmless, for on a motion for nonsuit we accept the plaintiff’s evidence as true.

Plaintiff has cited no authority for her contention that the excluded evidence has a definite bearing on the regularity of inspection and the assiduity of maintenance. It is unnecessary for us to pass upon this question, for we deem the exclusion of this evidence harmless in this case, because there was light enough from the light burning and the window for plaintiff not to fall or stumble over the step when she entered, and went to the toilet.

Plaintiff contends that the trial court erred in excluding the testimony of H. C. Umfleet that in 1948 and 1949 he was maintenance manager in the Piedmont Hospital or Piedmont Building; that he was employed by J. J. Jones, who was building manager: that the condition of the rest room the day plaintiff fell was the same as in 1948 and 1949, except that all three lights in the room in those years were burning; and that while Umfleet worked there he recommended to Jones that a sign be placed on the inside of the room to warn people there was a step-down when leaving, because he recognized it was dangerous, and it was very easy for someone to fall and get hurt. Afterwards J ones told him his recommendation was being considered, but no sign, as he recommended, was placed. Umfleet testified Jones worked for the Board of Directors of the hospital, and so far as he knew the Board of Directors for the hospital was the same as the Board of Directors for the whole building, but he might be wrong.

Plaintiff’s counsel in their brief state: “This testimony is admittedly not competent to prove that the rest room presented a dangerous condition ; but it is certainly competent to prove that if the rest room presented a dangerous condition, the defendant had notice of this fact.”

It is very doubtful if plaintiff’s evidence tends to show that Jones was an employee of the defendant. Conceding, but not deciding, that he was, we think that the rest room did not present a dangerous condition. Benton v. Building Co., supra; Garret v. W. S. Butterfield Theatres, Inc., supra. Therefore, it would appear from statement in brief of plaintiff’s counsel quoted above, tbe evidence was properly excluded. Tbe cases relied upon by plaintiff are distinguishable.

Tbe judgment of nonsuit is correct.

Affirmed.