{
  "id": 8550428,
  "name": "MARTHA DAVIS FEARING v. GEORGE T. WESTCOTT, JR. T/A: Casino Quizo Nags Head, N. C.",
  "name_abbreviation": "Fearing v. Westcott",
  "decision_date": "1973-06-13",
  "docket_number": "No. 731SC219",
  "first_page": "422",
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  "last_updated": "2023-07-14T21:14:36.293491+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Campbell and Parker concur."
    ],
    "parties": [
      "MARTHA DAVIS FEARING v. GEORGE T. WESTCOTT, JR. T/A: Casino Quizo Nags Head, N. C."
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nThe only question presented is whether the court erred in granting defendant\u2019s motion to dismiss.\nPlaintiff first argues that there was evidence to support a finding that defendant breached a duty owed to plaintiff. A patron at a Bingo parlor is an invitee to whom the proprietor owes a duty to exercise ordinary care to keep his premises in a reasonably safe condition and the proprietor is not an insurer of the safety of his patrons. Graves v. Order of Elks, 268 N.C. 356, 150 S.E. 2d 522. It is a question of law for the court whether there is sufficient evidence to support a finding that this duty was violated and the question of whether the evidence does show a breach of the applicable duty is for the trier of the facts. In the present case, the judge was trier of the facts.\nRule 41(b) provides procedures whereby a judge sitting in a non jury case can render judgment against a plaintiff \u201cnot only because his proof failed in some essential aspect to make out a case but also on the basis of facts as he may then determine them to be from the evidence before him.\u201d Helms v. Rea, 282 N.C. 610, 618, 194 S.E. 2d 1. When a Rule 41(b) motion is made at the close of plaintiff\u2019s evidence, the judge may decline to render any judgment until the close of all of the evidence, as was done in the present case. \u201cAs trier of the facts, the judge may weigh the evidence, find the facts against plaintiff and sustain defendant\u2019s motion at the conclusion of his evidence even though plaintiff has made out a prima facie case which would have precluded a directed verdict for defendant in a jury case.\u201d Helms v. Rea, supra, at pages 618-619. The judge\u2019s evaluation of the evidence pursuant to a Rule 41(b) motion is to be conducted free of any limitations as to the inferences which a court must indulge in favor of plaintiff\u2019s evidence on a motion for a directed verdict in a jury case. Bryant v. Kelly, 10 N.C. App. 208, 178 S.E. 2d 113, reversed on other grounds, 279 N.C. 123, 181 S.E. 2d 438. In the present case, Judge Cowper made the following findings of fact pursuant to Rule 52(a) (1) as required by Rule 41(b).\n\u201c(a) On the evening of 2 August 1968 the plaintiff was on the defendant\u2019s premises as a business invitee, seated on a stool playing a game in the nature of Bingo.\n(b) While so seated the plaintiff fell to the floor and sustained injury.\n(c) On the occasion in suit the seating arrangements for customers on the defendant\u2019s business premises were being maintained in a reasonably safe condition; there was no defect in the stool on which plaintiff was seated which might have caused her fall or which could have been discovered by defendant in the exercise of reasonable care.\n(d) The plaintiff\u2019s fall was not caused by any negligent act or omission of the defendant.\u201d\nThe court then proceeded to the conclusions that plaintiff was not injured by the negligence of defendant and that plaintiff had shown no right to relief. \u201cWhere, as in the present case, the trial court as the trier of the facts has found the facts specially, such findings are conclusive upon appeal if supported by competent evidence, even though there may be evidence which might sustain findings to the contrary.\u201d Bryant v. Kelly, supra, at page 213. Judge Cowper\u2019s findings are supported by the evidence and we hold that the facts found support the conclusions of law and judgment.\nPlaintiff\u2019s1 second argument, to the effect that the doctrine of res ipsa loquitur is applicable to the facts of this case and, if applicable, is sufficient to defeat defendant\u2019s motion for involuntary dismissal and carry the case to the trier of fact, is without merit. The doctrine of res ipsa loquitur is not applicable in situations where, as in the present case, \u201c \u2018. . . more than one inference can be drawn from the evidence as to the cause of the injury. . . .\u2019\u201d Lane v. Dorney, 250 N.C. 15, 108 S.E. 2d 55. Even where applicable, that doctrine merely takes the case to the trier of the facts and permits, but does not compel a finding of negligence. Here the judge sat as trier of the facts. He passed upon the credibility of the witnesses, weighed the evidence, considered what inference might be drawn therefrom and made his findings thereon.\nAffirmed.\nJudges Campbell and Parker concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Twiford, Abbott & Seawell by Russell E. Twiford and Christopher L. Seawell for plaintiff appellant.",
      "Leroy, Wells, Shaw, Hornthal & Riley by Dewey W. Wells for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "MARTHA DAVIS FEARING v. GEORGE T. WESTCOTT, JR. T/A: Casino Quizo Nags Head, N. C.\nNo. 731SC219\n(Filed 13 June 1973)\n1. Negligence \u00a7 57 \u2014 fall from stool in business establishment \u2014 sufficiency of evidence of negligence\nTrial judge\u2019s conclusion that plaintiff was not injured by the negligence of defendant was supported by the judge\u2019s findings that the plaintiff was a business invitee sitting on a stool on defendant\u2019s premises from which she fell and suffered injury, that defendant maintained the stools in a reasonably safe condition and that there was no defect in the stools; therefore, the trial court properly granted defendant\u2019s motion to dismiss made at the close of all the evidence in plaintiff\u2019s action to recover damages for injuries sustained when she fell.\n2. Negligence \u00a7 31 \u2014 fall from stool in business establishment \u2014 res ipsa loquitur not applicable\nIn this action for damages for injuries sustained by plaintiff when she fell off a stool, the doctrine of res ipsa loquitur was not applicable where more than one inference could be drawn from the evidence as to the cause of injury and where the judge sat as trier of the facts.\nAppeal by plaintiff from Cowper, Judge, 18 September 1972 Session of Superior Court held in Pasquotank County.\nAction by plaintiff to recover damages for injuries sustained when she fell from a stool provided for patrons of defendant\u2019s \u201cQuizo Stand.\u201d The case was tried by the judge without a jury.\nPlaintiff\u2019s evidence tended to show the following. On 2 August 1968 plaintiff, an 82-year-old woman, and others went to defendant\u2019s establishment to play \u201cQuizo/\u2019 a game similar to Bingo which plaintiff has played \u201cfor 20 years or more, since it first opened.\u201d Plaintiff changed her seat several times and as she took the seat in question, she placed her pocketbook in her lap. As she was removing her change purse, she \u201cturned the least bit in [her] seat\u201d and the seat \u201cslipped over.\u201d Plaintiff fell to the floor and sustained injuries to her right hip and leg. The seat in question was described as a swivel top stool about twelve inches in diameter. A four-inch long iron post was mounted, by the use of screws, to the underside of the seat head. When the seat is in position to be used, the four-inch long post fits inside a two-feet high iron post which is attached to a one-inch by six-inch board resting on the floor. Plaintiff\u2019s daughter, who had accompanied plaintiff on the occasion in question, testified that, \u201c [a] fter the seat tilted, ... it went back to its natural position except that it was leaning to the right, a little.\u201d The seat head did not fall from its mounting, but was removed by an employee after plaintiff\u2019s fall. Plaintiff\u2019s daughter testified that she returned to defendant\u2019s establishment after the accident to examine the seats and stated that, \u201c [n] othing that I saw attached to or connected with the seat on which Mother was sitting came apart or broke.\u201d\nDefendant\u2019s evidence tended to show the following. Seating arrangements for customers in Bingo establishments' in the Southeast in August of 1968, and prior thereto, followed the same general pattern and used stools. Defendant has never had any trouble with the seats. The bottom boards were renewed in the Spring of 1968, but no repairs had been made from that time until August of 1968. The seats were described as being in'good condition on the date in question. During the 21 years prior to plaintiff\u2019s fall, an intoxicated man had fallen and another man stumbled on the board when going to his seat.\nAt the close of plaintiff\u2019s evidence the defendant moved for an involuntary dismissal under Rule 41 (b) of the Rules of Civil Procedure, G.S. 1A-1. The court declined to render judgment until the close of all the evidence, at which time the judge granted defendant\u2019s renewed motion for dismissal and made findings of fact pursuant to Rule 52(a) (1).\nTwiford, Abbott & Seawell by Russell E. Twiford and Christopher L. Seawell for plaintiff appellant.\nLeroy, Wells, Shaw, Hornthal & Riley by Dewey W. Wells for defendant appellee."
  },
  "file_name": "0422-01",
  "first_page_order": 446,
  "last_page_order": 449
}