{
  "id": 8551209,
  "name": "HOYLE D. RYDER v. PERRY BENFIELD t/a GREEN PARK CABINET CENTER; EDDIE HUFFMAN t/a CAROLINA LANDSCAPING AND PAVING COMPANY; and HOWARD LAFFON",
  "name_abbreviation": "Ryder v. Benfield",
  "decision_date": "1979-10-16",
  "docket_number": "No. 7925SC43",
  "first_page": "278",
  "last_page": "288",
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    "judges": [
      "Judges CLARK and Martin (Harry C.) concur."
    ],
    "parties": [
      "HOYLE D. RYDER v. PERRY BENFIELD t/a GREEN PARK CABINET CENTER; EDDIE HUFFMAN t/a CAROLINA LANDSCAPING AND PAVING COMPANY; and HOWARD LAFFON"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nFirst, defendant assigns error to the denial of his timely motions for a directed verdict and for judgment notwithstanding the verdict. Defendant argues that the evidence fails to disclose any breach of duty on his part. To the contrary, he asserts, the evidence shows contributory negligence as a matter of law \u201cbecause [plaintiff] was or should have been aware of the condition which he alleged resulted in his injury.\u201d\nIn ruling on defendant\u2019s motions for a directed verdict and for judgment notwithstanding the verdict, the test is whether the evidence was sufficient to entitle plaintiff to have the jury consider it. Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E. 2d 396 (1971). To determine this question, \u201call evidence which supports plaintiffs claim must be taken as true and viewed in the light most favorable to him, giving him the benefit of every reasonable inference which may legitimately be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in his favor.\u201d Maness v. Fowler-Jones Construction Co., 10 N.C. App. 592, 595, 179 S.E. 2d 816, 818, cert. denied, 278 N.C. 522, 180 S.E. 2d 610 (1971). The issues thus framed for our resolution in this case are: Did plaintiff offer any evidence which, when considered in accordance with the above test, tends to prove that his injuries were proximately caused by the negligence of the defendant Benfield, and does the evidence establish as a matter of law that the plaintiff failed to exercise the requisite degree of ordinary care for his own safety? We are of the opinion that the evidence was such as to permit different inferences reasonably to be drawn therefrom, and, therefore, both questions were properly submitted to the jury.\nThe parties stipulated before trial to the fact that plaintiff was an independent contractor. When he came onto the defendant\u2019s premises to pour the concrete shelf, he was also an invitee to whom defendant owed a duty of \u201cdue care under all the circumstances.\u201d Spivey v. Babcock & Wilcox Co., 264 N.C. 387, 388, 141 S.E. 2d 808, 810 (1965). Specifically, the duty owed by the defendant contractee has been described as follows:\nOne going upon another\u2019s property as an independent contractor ... is an invitee to whom the property owner is liable for an injury occasioned by an unsafe condition of the premises encountered in the work, which was known to the property owner but unknown to the injured person. Generally speaking, an employer owes a duty to an independent contractor ... to turn over a reasonably safe place to work, or to give warning of dangers.\n41 Am. Jur. 2d, Independent Contractors \u00a7 27 (1968). See also Deaton v. Board of Trustees of Elon College, 226 N.C. 433, 38 S.E. 2d 561 (1946).\nViewing the evidence in the instant case in the light most favorable to the plaintiff, it appears that defendant was informed on at least two occasions by at least two different individuals that a retaining wall behind which fill dirt was to be poured should be braced. Reasonable men could draw a logical inference therefrom that the defendant was aware that failure to brace such a wall would create a dangerous or unsafe condition. Moreover, that defendant knew the wall had not been braced could also reasonably be inferred since he owned the premises, conducted his business there, planned the renovations to the basement, and hired all the work done. There is no indication in plaintiff\u2019s evidence, and defendant has not come forward with any proof, from which one could conclude that plaintiff was warned of the absence of bracing in the wall. Thus, one justifiable conclusion to make is that plaintiff reasonably \u201cassumed\u201d the wall had been braced, especially in light of the evidence that defendant told plaintiff he would have the wall braced. We believe this evidence presented a question for the jury to decide whether defendant\u2019s failure to brace and to warn constituted actionable negligence and, further, whether such negligence, if any, was a proximate cause of the plaintiff\u2019s injuries.\nWe next consider the defendant\u2019s contention that, regardless of whether he failed to exercise ordinary care, the plaintiff is barred from any recovery because plaintiff was contributorily negligent as a matter of law. Only when no other than this one conclusion reasonably can be drawn from the evidence is contributory negligence properly held proved as a matter of law. Spivey v. Babcock & Wilcox Co., supra. Although we agree that some evidence was introduced from which the jury could have concluded that the plaintiff failed to exercise ordinary care for his own safety, we are not persuaded that the evidence was sufficient to compel that conclusion as a matter of law. Thus, we hold that the court did not err in refusing to grant the defendant\u2019s motions for directed verdict and judgment notwithstanding the verdict.\nBy assignments of error numbers 4, 5 and 6, based on numerous exceptions noted in the record, defendant contends that the court erred in allowing plaintiff\u2019s expert witness, Rowe, to answer certain hypothetical questions regarding his opinion as to what caused the wall to fall. Defendant first argues that the question itself was \u201cseriously deficient\u201d for the reason that it did not contain all the essential facts. The hypothetical question complained of in essence sought the witness\u2019 opinion of whether the wall was \u201cproperly constructed\u201d if the jury should find by the greater weight of the evidence that a wall made of eight-inch cinder blocks and approximately six to seven feet high was constructed in the defendant\u2019s basement; that the wall was back-filled, but not braced; that the backfilled space between the old dirt wall and the new concrete wall was two to four feet wide, and the space between the top of the wall and the first floor joist was about four feet; that the wall was not tied to the floor; and that the wall fell while a concrete cap was being poured on its top. Over objections and motions to strike, the witness testified that, in his opinion, the wall was not properly constructed because it lacked bracing of any kind.\nThe rule with respect to the form of hypothetical questions is that the question must contain all the material facts necessary to enable the expert to express an intelligent and reliable opinion. \u201cAlthough it is not necessary to incorporate all of the facts, the trial judge may properly exclude the witness\u2019s answer if the question presents a picture so incomplete that an opinion based upon it would obviously be unreliable.\u201d 1 Stansbury\u2019s N.C. Evidence, Opinion \u00a7 137 (Brandis rev. 1973). [Emphasis in original.] Moreover, the question should not include extraneous facts, nor should it assume those facts sought to be established. And where the evidence is conflicting as to any essential fact, the assumption of one version over another is not prejudicial. 6 Strong\u2019s N.C. Index 3d, Evidence \u00a7\u00a7 49.1, 49.2 (1977).\nIn this case the witness Rowe was qualified as an expert \u201cin the field of masonry construction and as a brick and block mason.\u201d Judging from the evidence in the record, we are satisfied that the question contained every essential fact brought out at trial and plainly enabled this witness, who was an expert in the field, to form a safe, reliable and intelligent opinion as to whether the retaining wall in this case was or was not properly constructed. We note, furthermore, that much of which defendant now complains was rendered inconsequential, if not moot, by counsel\u2019s rephrasing of the question to take care of defendant\u2019s objections, and that many of defendant\u2019s suggestions on appeal concerning \u201cfacts\u201d which should have been included in the question would have produced error had they been so incorporated, since there was no evidence, regarding, for instance, the type of mortar used or the make-up of the sand. See Stansbury, supra. We hold, therefore, that the question was sufficiently composed, and no error flowed from its admission.\nSecond, defendant charges that this expert witness \u201cwas not qualified to testify about causation.\u201d It suffices to say that the qualification of experts is a matter \u201cordinarily within the exclusive province of the trial judge\u201d, Stansbury, supra at \u00a7 133, and that, once the court decides the witness is an expert, he is properly allowed to give his opinion as to causation. Indeed, provided the question is correctly formed \u2014 which is not and could not be disputed here \u2014 the expert\u2019s foremost function is to enlighten the jury as to the appropriate inferences to be drawn from what happened, including what probably caused the incident to happen. We find this assignment of error wholly meritless.\nFinally, defendant contends that he was entitled to a credit against the judgment in the amount of $2,000, the sum paid by the \u201cjoint-tort-feasor\u201d Huffman. We agree. Where one tort-feasor has settled with the injured party, the other tort-feasor, who has gone to trial, is entitled to have the judgment reduced by the amount of the settlement. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E. 2d 769 (1970).\nWe do not find it necessary to discuss the question of whether the trial judge had jurisdiction to amend the judgment once notice of appeal had been given. While the record indicates that the trial judge was aware at one time of the fact that plaintiff had taken a voluntary dismissal as to the defendant Huffman upon the payment of $2,000, it does not appear that this fact was called to his attention when he signed the judgment for the full $18,000.00. Regardless, the law is clear that\n[w]hen a release or a covenant not to sue ... is given in good faith to one of two or more persons liable in tort for the same injury . . .: (1) . . . it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it. . . .\nG.S. \u00a7 IB-4. We think the ends of justice require that the amendment be made at this time. For that reason., this cause is remanded to the superior court so that court may amend the judgment to reflect the fact that $2,000.00 has been paid.\nThe result is: In the trial we find no error. The cause is remanded to the suprior court for the entry of a judgment in accordance with this opinion.\nNo error. Cause remanded.\nJudges CLARK and Martin (Harry C.) concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Sigmon, Clark & Mackie, by E. Fielding Clark II and Jeffrey T. Mackie, for plaintiff appellee.",
      "Helms, Mulliss & Johnston, by Robert B. Cordle and N. K. Dickerson III, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "HOYLE D. RYDER v. PERRY BENFIELD t/a GREEN PARK CABINET CENTER; EDDIE HUFFMAN t/a CAROLINA LANDSCAPING AND PAVING COMPANY; and HOWARD LAFFON\nNo. 7925SC43\n(Filed 16 October 1979)\n1. Negligence \u00a7 57.10\u2014 fall of wall on workman \u2014sufficiency of evidence of negligence \u2014 no contributory negligence as matter of law\nIn an action to recover for personal injuries sustained by plaintiff when a cinder block wall in defendant\u2019s basement collapsed on him, evidence presented a question for the jury to decide whether defendant\u2019s failure to brace the wall and warn plaintiff of the danger constituted actionable negligence and whether such negligence was a proximate cause of plaintiff\u2019s injuries and such evidence did not disclose contributory negligence as a matter of law where it tended to show that defendant was informed on at least two occasions by at least two different individuals that a retaining wall behind which fill dirt was to be poured should be braced; it could be inferred that defendant was aware that failure to brace such a wall would create a dangerous or unsafe condition; that defendant knew the wall had not been braced could reasonably be inferred since he owned the premises, planned the renovations to the basement and hired all the work done; and there was no indication that plaintiff was warned of the absence of bracing in the wall.\n2. Evidence \u00a7 49.1\u2014 hypothetical question \u2014essential facts contained in question\nIn an action to recover for personal injuries sustained by plaintiff when a cinder block wall in defendant\u2019s basement collapsed on him, the trial court did not err in allowing plaintiff\u2019s expert witness to answer a hypothetical question regarding his opinion as to what caused the wall to fall, since the question contained every essential fact brought out at trial and plainly enabled the witness to form a reliable and intelligent opinion as to whether the retaining wall was or was not properly constructed.\n3. Torts \u00a7 7.1\u2014 settlement with one tort feasor \u2014 judgment against other tort feasor reduced\nWhere plaintiff settled with one tort feasor for $2000 before trial, defendant was entitled to have the judgment reduced by the amount of that settlement.\nAPPEAL by defendant from Graham, Judge. Judgment entered 30 September 1978 in Superior Court, CATAWBA County. Heard in the Court of Appeals on 20 September 1979.\nIn this civil action plaintiff sued defendant Perry Benfield, trading as Green Park Cabinet Center; defendant Eddie Huffman, owner and operator of Carolina Landscaping and Paving Co.; and defendant Howard Laffon, a brick mason, to recover damages for injuries he received when a cinder block wall in the basement of Benfield\u2019s shop collapsed and fell on him. Plaintiff charged that his injuries proximately resulted from the negligence of Benfield \u201cin the manner in which [he] . . . erected or caused to be erected the cinder block wall and in negligently maintaining and supervising said wall to see if said wall was securely in place and in permitting the same to break loose and fall.\u201d Additionally, plaintiff claimed that the defendant Laffon was negligent in erecting the wall without bracing it; that the defendant Huffman was negligent in backfilling behind the wall with sand when he \u201cknew or in the exercise of reasonable care should have known that the wall constructed by Howard Laffon was improperly constructed and erected and would not support the weight of the sand placed therein\u201d; and that the \u201cindependent, separate and concurring negligent conduct\u201d of these defendants was the direct and proximate result of his injuries.\nIn their respective answers, defendants denied the essential allegations of plaintiff\u2019s complaint and pleaded contributory negligence on his part in bar of his claim. Each crossclaimed against the other for contribution and indemnification.\nBefore the case was called for trial, plaintiff took a voluntary dismissal as to the defendant Huffman, for which this defendant paid plaintiff $2,000.00. The cause then came on for trial on 20 September 1978, and plaintiff introduced evidence tending to establish the following:\nPlaintiff is the sole owner of a concrete finishing company, a business in which he has been engaged for approximately thirteen years. His son, Anthony, has been working with the company since April 1971, and their work involves \u201cgrading driveways, basements and patios and pouring and finishing concrete.\u201d\nAbout three weeks prior to the accident, plaintiff entered into a contract with the defendant Benfield to pour a concrete slab over the entire basement area of Benfield\u2019s cabinet shop. Plaintiff and his son performed the job, getting the dirt floor ready one day and pouring the slab the next, and then further negotiated with Benfield to come back and pour a concrete cap or shelf on top of a cinder block retaining wall which the defendant intended to have erected in the basement. The testimony of both plaintiff and his son was to the effect that plaintiff told Benfield the wall would need to be braced \u201cand he said that he would have it braced.\u201d\nOn 18 September 1975 plaintiff, along with his son and two other workers, returned to the cabinet shop to pour the shelf. Upon arriving, they found that the wall had been built, but that employees of the defendant Huffman were still in the process of backfilling. The wall itself, according to plaintiff and his son, was approximately six to seven feet in height, \u201cabout three to four feet away from the dirt bank or old wall\u201d, and about four feet from the ceiling. Plaintiff\u2019s son testified that the wall had been backfilled all the way around to within a foot or a foot and a half of its top. A tractor operator from the defendant Huffman\u2019s company was \u201chauling sand into the basement and dumping it over behind the wall. . . . [He] lacked a little of having the wall backfill-ed.\u201d Plaintiff told his son \u201cto go ahead and help the tractor operator finish so that we could get our job done\u201d, so his son stood up on the sand behind the wall and helped to level it out. Within one to two hours of plaintiff\u2019s arrival, the backfilling was finished, and plaintiff proceeded with his job. First,\nwe had to put a four inch board around the top of the block wall for forming the concrete and to keep it from running over the wall. We used a regular forming board, four inches wide and three-quarters of an inch thick. We attached the boards to the block wall with [two-and-a-half-inch long] concrete nails which were driven into the joints [with a normal-sized hammer]. The boards were located at the top of the wall and extended about two inches above the wall. Their purpose was to hold the concrete and to keep it from coming out over the edge of the blocks. It took us about forty-five minutes to put up the forming boards.\nAt the suggestion of the defendant Benfield, plaintiff enlisted the aid of the tractor operator to haul the wet concrete in the tractor\u2019s front-end loader bucket. While plaintiff \u201cwas watching out for the tractor operator to see that he didn\u2019t hit the wall\u201d, since the operator \u201cdidn\u2019t have much room to operate in\u201d, plaintiff\u2019s son and another worker (Steve Causby) were on top of the wall, raking the concrete out of the bucket. On cross-examination, his son described the procedure as follows:\nSteve Causby had one foot on the wall and one foot on the sand and was raking concrete. I was doing the same. I would rake the concrete and then step to one side to let Steve float it down. When I stepped to one side, I stepped onto the wall. Then I would step back from the wall to let Steve pass in front of me. He walked on the dirt and sand to do that. He could possibly have had his feet placed on the wall at the same time mine were. It is possible that both of us could have been standing on the wall at the same time.\nThe thickness of the shelf they were pouring varied from two to four inches. According to Anthony Ryder, \u201c[t]he concrete that we were pouring was pretty heavy . . . wet enough to run down but not wet enough to run over the wall, but it was not too dry so that it put pressure on the wall.\u201d He and Causby were about halfway through the job when the wall caved in, pinning his father underneath. Ryder initially denied that the part of the wall on which he was standing fell first; but, after being reminded of his earlier deposition testimony, he indicated that the wall \u201c \u2018started falling where we were at. It went back to the corner and then the other side came down.\u2019 \u201d\nAs noted above, plaintiff testified that he had mentioned to the defendant Benfield some three weeks before he undertook to pour the concrete shelf that the wall would need to be braced. He did not, however, at any time ask Benfield whether the wall actually had been braced, nor did he check the wall to determine for himself if it contained bracing. Instead, plaintiff stated that he \u201cassumed\u201d the wall had been braced.\nI did not make [the bracing] a precondition of coming out there to pour the cap on the wall. I did not tell him that I would not work on the wall unless it was braced. My telling Mr. Benfield that the wall needed to be braced was only a suggestion.\nOn the other hand, plaintiff also said that he would not have attempted to pour the shelf had he known in advance that the wall had not been braced.\nBoth plaintiff and his son testified concerning various methods used to brace retaining walls. Of the four ways with which they were generally familiar, three of the methods would have been visible from the outside of the wall. Plaintiff testified that he knew the three obvious methods had not been used. Plaintiff\u2019s son testified that, when he inspected the wall prior to pouring the cap, he \u201ccould see that there were no braces on the front of the wall, but I do not know about bracing behind it . . . because of the backfilling.\u201d He stated further that, of the four methods of bracing that could have been employed, he knew when he checked the wall that neither of two methods had been used. Moreover, a third method could not have been used since the braces, of necessity, would have been put in before his father poured the concrete floor. On cross-examination, Ryder admitted that the wall itself seemed to be in good condition and that he did not notice any obvious defects. He also conceded that he could have checked to see if there was bracing in the wall that would not have been obvious, but he did not do so.\nPlaintiff also offered the testimony of the defendant Laffon, called as an adverse witness, who testified in substance that he had been hired by the defendant Benfield to build the retaining wall; that he had told Benfield \u201cto brace the wall from the outside if he was going to backfill\u201d; that Benfield knew he, Laffon, was not bracing the wall, but didn\u2019t say anything about it; that he had been laying bricks for ten years and had never braced a wall because \u201c[s]omebody other than the brick mason does it\u201d; that he built the wall in accordance with Benfield\u2019s instructions; and that the wall was not of a uniform height all the way around and reached only five and a half to six feet at its highest point.\nPlaintiff next called Howard Rowe, who was qualified as an \u201cexpert in the field of masonry construction and as a brick and block mason.\u201d Rowe was permitted to testify, over objection, as to his opinion that retaining walls should be braced; that the cinder block wall in the defendant\u2019s basement was not properly constructed because it was not braced; and that the wall fell due to \u201cpressure from that backfilling of sand, the weight of the sand, the weight of the concrete, wet concrete, and possibly that tractor moving in and out of there could have vibrated the floor so that could set it off.\u201d Rowe added, on cross-examination, that \u201cany subcontractor should make sure for his own safety . . . [by] checking to see whether the wall is braced or not. . . .\u201d\nFollowing the plaintiff\u2019s medical testimony, with which he concluded his case, the court allowed the defendant Laffon\u2019s motion for a directed verdict. The following issues were submitted to and answered by the jury as indicated:\n1. Was the plaintiff, Hoyle Ryder, injured by the negligence of the defendant, Perry Benfield?\nAnswer: Yes.\n2. Did the plaintiff, Hoyle Ryder, by his own negligence, contribute to his injury?\nAnswer: No.\n3. What amount, if any, is the plaintiff, Hoyle Ryder, entitled to recover for personal injuries?\nAnswer: $18,000.00.\nFrom judgment entered on the verdict, defendant appealed.\nSigmon, Clark & Mackie, by E. Fielding Clark II and Jeffrey T. Mackie, for plaintiff appellee.\nHelms, Mulliss & Johnston, by Robert B. Cordle and N. K. Dickerson III, for defendant appellant."
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