Grady v. J. C. Penney Co., 260 N.C. 745 (1963)

Dec. 19, 1963 · Supreme Court of North Carolina
260 N.C. 745


(Filed 19 December 1963.)

1. Negligence § 37b—

The proprietor of a store owes his customers the duty to exercise ordinary care to keep the premises in reasonably safe condition, and to give warring of hidden perils and unsafe conditions insofar as they can he ascertained by reasonable .inspection and supervision.

2. Negligence § S7g—

Evidence tending to show that plaintiff customer, after having been directed to a dressing room, opened the curtain to an adjacent stair landing, *746took two steps and lost her balance and fell down the stairs, without evi-•dlenoe of defective lighting or 'any inherent danger in the plan of construction, with testimony ;by pla-intifC herself that there was nioilMng to prevent her from seeing the steps if she had looked, is held to warrant judgment as of nonsuit.

Appeal by plaintiff from Clark, SJ., August 1963 “A” Civil Session Olf Lenoik.

Lamar Jones for plaintiff appellant.

White •& Aycock for defendant appellee.

Moore, J.

Plaintiff seeks to recover 'damages for personal injuries Buffered by bar when she fell down a flight of stair® in defenri'amt’e department store. She appeals from judgment of involuntary nonsuit. Defendant offered no evidence.

The fall oiccumred 'about 4:45 P.M., 24 January 1961. Plaintiff was shopping at defendant’s store. She went to the dress department on the second floor and selected two house dresses, then proceeded' to- itlhe dressing room 'area at the 'direction of a saleslady who' told her that ishe (the saleslady) would join her in a few minutes. Plaintiff pushed aside a curtain to what she thought was the entrance ito a dressing room. In fact it was an entrance to a landing at the 'head of a stairway. She stepped inside, lost her balance 'and fell down a flight of twelve steps.

Plaintiff offered in evidence a “Partial second floor plan” of defendant’® store. It was stipulated that the drawing is a true and ae-ourate representation of -tile portion of the store involved. A short aisle leads from the dress department eastwardly between the clerks’ desk and the mirror 'compartment to- a sort of alcove or hallway on which the dressing rooms or booths are located. The hallway runs north ■and isooth, at right angles to toe above-mentioned aisle. The hallway deiad-ends at toe south wall of the store building. At the south end of the hallway on the west side is a 'dressing room, and from this dressing room northward to the aisle is a partition wall which separates a part of the dress department from the hallway. On toe east side of toe hallway are five dressing rooms or booths which open into toe hallway and are situate between the hallway and toe east wall of the store building. These 'dressing rooms are about 4 feet by 4% feet, floor dimensions; toe entrances to- these rooms axe openings about 22 inches wide, covered with curtains bung by eyelets on a rod. Immediately to toe ¡north of this row of dressing rooms is toe entrance to' toe stair lauding; this opening isa little wider than toe dressing room entrances, *747and Las a curtain in all respecte similar to those at the dressing room entrances; this entrance is set back about a foot farther east than ibhe fronts to the 'dressing rooms. Extending north from the stair-landing entrance is a partition wall encasing the stairwell. The stairway is about 3 feet wide and has a guard or handrail along the west side; the stairway is not maintained for the use of 'customers; it leads to the office on the mezzanine between the first 'and second floors. The landing 'at the head of the stair is approximately 2% feet !by 3 -feet. The entrance to the landing is 25 inches wide, and the landing extends 3 to 4 inches farther to> the north -than the entrance itself. In proceeding eaistwardly along the aisle toward .the dressing-room hallway, the entrance to the stairway is nearly in line with the aisle, just a little to the south. To reach the dressing rooms, one must turn right, 'almost at night angles, from the aisle into the hallway.

The following is a summary -of plaintiff's version of the accident: A saleslady at the clerks’ desk told plaintiff to- pick out what house dresses she wanted. Plaintiff selected two- and to-ld the saleslady she would like to try them on. The saleslady told plaintiff to go- back to the hall “and turn to the right and ishe (the saleslady) would be there in a little while.” Plaintiff proceeded to- go back to- the dressing-room hallway, saw Mrs. Hawkins, a seamstress, to the left of the stairway entrance, and spoke to her, land went to the first -entrance she saw, which was the stairway -entrance — plaintiff thought it was a -dressing room. She pulled 'the curtain aside, “peeled it open,” with her right hand while holding the dresses -in her left hand. She 'stepped through the opening, but does not recall with which foot. When ishe stepped in she got -off balance and fell -down the stair. She had not seen the stairsteps before ishe stepped in and became overbalanced. She stepped -in as she pulled the curtain back. She had shopped at Penney’® a number of years. She had been on the second floor and tried on 'dresses a number of times, but on those occasions there was -someone with her. Her eyesight is normal and she “-could walk perfectly -all right” up to the time of the -accident. On -cross-examination she testified: “I reckon I couldn’t have gotten by -that post -and stepped down in that hole . . . without talcing another step after I got insi-de. ... I reckon there wasn’t -anything to prevent me fro-m seeing the steps if I bad looked. There wasn’t anything o-n the fio-or to cause me to- fall. I did not slip o-n anything.”

The proprietor -o-f a store owes his customers the -duty -to- exercise ordinary care to keep the -premises in reasonably safe condition and to give warning of -hidden perils and unsafe conditions insofar as- can be 'ascertained by reasonable inspection -and -supervision. Case v. Cato’s, Inc., 252 N.C. 224, 113 S.E. 2d 320.

*748Plaintiff .alleges that defendant was negligent -in that: (1) The stairway and landing ware' without proper lighting; (2) there was no guard nail .at the landing or on the stair; (3) the stairwell was “constructed ■peculiarly and inherently unsafe to parsons on or about the premisas”; (4) there was no warning sign that the entrance in question was to a stairway; and (5) the saleslady directed plaintiff to- the dressing-room area without warning her of the stairway.

The evidence does not support plaintiff’s allegation that the stairway and landing were without proper' lighting. A -witness, who- was not in the .store at the time of the .occurrence -and who- had seen the lighting on a prior occasion, testified: “It was lighted- fair. The light inside (the stairway was not equal with that -in the sales section of the- store.” Eight flourescemt light tubes, attached to- the ceiling about 4 feet north o,f the position of the landing, extended over tire stairway about one-third the width of itlh-e stairway; the .other -ends of the tubes extended into tire dressing-room hallway. There is a -window in the outside wall of (the building .at the landing. Plaintiff -did not testify that her vision was obscured by poor lighting.

There i-s a guard rail -along the stair. There is no- evidence whatever that -the .stair iis “peculiar” in -construction, defective in -any way, or inherently dangerous. There was not -any foreign matter -on the floor to cause plaintiff to trip; -she did not slip.

There was no- sign posted at the entrance indicating a stairway. There had been ian “exit” sign over the entrance but the inspector from the fire department had -required its removal because the stairway led to the mezzanine offi¡oe and might prove to- be a trap in -case of fire. The saleslady did not mention the stairway, but did -direct plaintiff to turn to- the right at the hallway. Plaintiff did n-ot follow her instruction. It is true that plaintiff was not expecting to- find a stairway when- she pushed -the curtain aside-, but the stair was in plain view .and she was entering the landing at floor level. The landing was wider than the entrance. Plaintiff admits that she took at least two- .steps -after opening the curtain .and there w-ais nothing to- prevent her .seeing the stair if -she had looked.. Her eyesight was normal and she bad no- physical handicap. “Wher-e a .condition of the premises -is obvious to an ordinarily intelligent person., -generally there is no- duty of the owner of the premises to warn of that condition.” Reese v. Piedmont, Inc., 240 N.C. 391, 395, 82 S.E. 2d 365; Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E. 2d 338.

Plaintiff relies on Walker v. Randolph County, 251 N.C. 805, 112 S.E. 2d 551. There the principle of diverted attention applies, but that principle is inapplicable upon the facts here- presented. The instant *749icase is 'controlled by Benton v. Building Co., 223 N.C. 809, 28 S.E. 2d 491; Porter v. Niven, 221 N.C. 220, 19 S.E. 2d 864. Plaintiff has failed to show any negligence on the part of the defendant which could be a proximate cause of her injuries.