American Mutual Fire Insurance v. Coca-Cola Bottling Co. , 13 N.C. App. 639 ( 1972 )

BRITT, Judge.

Plaintiffs first assign as error the submission of the issue of contributory negligence to the jury, having moved for a directed verdict at the close of the evidence which was denied. They allege there was insufficient evidence to justify a submission of such issue. We do not agree with this contention. The record indicates that the management and personnel of The Men’s Den exercised such control and dominion over the machine as to raise the issue of contributory negligence in the minds of men of ordinary reason. After the machine was placed in the store by defendant, during a renovation of the store the insured moved the machine to a new location in the store; insured had a barrel cut in half and placed a half-barrel over the fountain dispensing unit to give the effect of the drink coming out of the barrel ; insured had a screen placed in front of the mechanical part of the unit to conceal the unsightly parts of the unit; neither the unit nor the area behind it was ever cleaned; insured caused the compressor to be placed under a shelf attached to the wall with merchandise above the unit and insured caused highly inflammable styrofoam cups and wax cups to be kept above the machine, which cups were destroyed or in a melted condition when firemen arrived on the scene after the fire. All of these facts when taken in the light most favorable to defendant permit the inference of contributory negligence. When this inference may be drawn by men of ordinary reason the issue is properly submitted to the jury. Taylor v. Carter, 2 N.C. App. 78, 162 S.E. 2d 607 (1968).

Plaintiffs’ second assignment of error is that if an issue of contributory negligence were properly submitted to the jury, then the charge of the court in regard to that issue was erroneous and prejudicial. We find no merit in this contention. Upon a careful review of the jury charge, we find it to be free from prejudicial error.

No error.

Judges Campbell and Graham concur.