Ross v. Sterling Drug Store, 225 N.C. 226 (1945)

May 23, 1945 · Supreme Court of North Carolina

225 N.C. 226

CORA ALEXANDER ROSS v. STERLING DRUG STORE et al.

(Filed 23 May, 1945.)

1. Negligence § 41b—

The proprietor of a store is not an insurer of the safety of customers while on the premises. But he does owe them the duty to exercise ordinary care to keep the premises in a reasonably safe condition and to give warning of hidden perils or unsafe conditions, in so far as can be ascertained by reasonable inspection and supervision.

2. Negligence §§ 4b, 20—

In an action for damages for injuries to a customer, on the premises, by the alleged negligence of the proprietor of a store, a charge by the court, imposing the duty on the defendant “to give warning of any hidden peril,” without more, is in excess of the legal requirement, and entitles defendant to a new trial.

Appeal by defendant Drug Company from Gwyn, J., at December Term, 1944, of MecicleNbukg.

Civil action to recover damages for an alleged negligent injury.

Tbe defendant Drug Company operates a drug store on tbe first floor of tbe Professional Building in tbe city of Charlotte. Tbe building is owned by tbe Realty Company. It is in evidence tbat on 9 February, 1943, plaintiff was a customer in tbe drug store. As sbe was leaving tbrougb a double-door exit, wbicb opens on Tryon Street, ber coat caugbt on tbe lock or keeper of tbe balf door tbat was closed or fastened, and while sbe was yet in tbe open doorway trying to release ber coat, tbe other balf door wbicb was equipped with top door cheek, closed with great force, knocked ber out of tbe doorway and down on tbe sidewalk, and inflicted serious injury.

Tbe door check, wbicb exerted force on tbe door to close it, and to keep it closed, was not in proper working order. It required inspection and repair, especially with reference to tbe fluid wbicb it contained and wbicb controlled its operations. Neither tbe landlord nor tbe tenant bad inspected it for some time.

Upon denial of liability and plea of contributory negligence, tbe jury returned a verdict against tbe defendant Drug Company. From judgment on tbe verdict, tbe defendant appeals, assigning errors.

Guy T. Carswell, John M. Rohinson, and, Hunter M. Jones for plaintiff, appellee.

Jones •& Smathers for defendant, appellant.

Stacy, C. J.

In addition to tbe allegations of negligence in respect of tbe condition of tbe doorway and tbe operation of tbe door in question, it is specifically alleged tbat tbe defendants “negligently failed to give any warning thereof.”

Tbe court instructed tbe jury tbat tbe defendant Drug Company owed to tbe plaintiff, a customer and invitee, “tbe duty to exercise due care to keep tbe premises in a reasonably safe condition and to give warning of any bidden peril. Tbat duty to use due care, to keep tbe premises in a reasonably safe condition, extends to any doors, door-checks and instru-mentalities used to facilitate entry into and exit from tbe drug store.”

Near tbe end of tbe charge, tbe jury was told tbat if tbe plaintiff bad satisfied them from tbe evidence and by its greater weight, “tbe defendant was negligent, in tbe manner set forth in tbe complaint,” and tbat such negligence was tbe proximate cause of tbe injury, tbe issue of negligence should be answered in favor of tbe plaintiff.

Thus, tbe defendant says, tbe duty to warn tbe plaintiff of any bidden peril was made absolute, whether known to tbe defendant or discoverable in tbe exercise of reasonable inspection and supervision. Tbe record is susceptible of this interpretation. We cannot say the jury did not so understand it.

The proprietor of a store is not an insurer of the safety of customers while on the premises. Rut he does owe to them the duty to exercise ordinary care to keep the premises in a reasonably safe condition and “to give warning of hidden perils or unsafe conditions in so far as can be ascertained by reasonable inspection and supervision.” Watkins v. Taylor Furnishing Co., 224 N. C., 674; Griggs v. Sears, Roebuck & Co., 218 N. C., 166, 10 S. E. (2d), 623; Williams v. Stores Co., 209 N. C., 591, 184 S. E., 496; Bowden v. Kress, 198 N. C., 559, 152 S. E., 625.

The duty imposed on the defendant, “to give warning of any hidden peril,” period, appears to be in excess of the legal requirement. It doubtless prejudiced the defendant as it was reasonably calculated to do. Hence, a new trial seems necessary. It is so ordered.

New trial.