{ "id": 8519725, "name": "DENNIS B. RUSSELL v. SAM SOLOMON COMPANY", "name_abbreviation": "Russell v. Sam Solomon Co.", "decision_date": "1980-10-07", "docket_number": "No. 8012SC297", "first_page": "126", "last_page": "132", "citations": [ { "type": "official", "cite": "49 N.C. App. 126" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "258 S.E. 2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "43 N.C. App. 164", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550365 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/43/0164-01" ] }, { "cite": "245 S.E. 2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 459", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563539 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0459-01" ] }, { "cite": "241 S.E. 2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573342 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0425-01" ] }, { "cite": "190 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "parenthetical": "explosion of an electric water heater" } ], "opinion_index": 0 }, { "cite": "281 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576386 ], "year": 1972, "pin_cites": [ { "parenthetical": "explosion of an electric water heater" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0697-01" ] }, { "cite": "183 S.E. 2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "parenthetical": "explosion of an electric water heater" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 433", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550265 ], "year": 1972, "pin_cites": [ { "parenthetical": "explosion of an electric water heater" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0433-01" ] }, { "cite": "79 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "parenthetical": "escalator suddenly jerked, stopped and quickly moved forward" } ], "opinion_index": 0 }, { "cite": "239 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626608 ], "year": 1954, "pin_cites": [ { "parenthetical": "escalator suddenly jerked, stopped and quickly moved forward" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0288-01" ] }, { "cite": "197 S.E. 2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559717 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0640-01" ] }, { "cite": "152 S.E. 2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "year": 1967, "opinion_index": 0 }, { "cite": "256 S.E. 2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572271 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0591-01" ] } ], "analysis": { "cardinality": 624, "char_count": 11930, "ocr_confidence": 0.723, "pagerank": { "raw": 3.26376996203975e-07, "percentile": 0.8696804331063317 }, "sha256": "576fd54464d32d8d35ebb5a6ac141491730e7d914693457d52389e6f12fc84a7", "simhash": "1:b84357f9ffd45446", "word_count": 2064 }, "last_updated": "2023-07-14T18:45:37.060516+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Martin (Robert M.) and Webb concur." ], "parties": [ "DENNIS B. RUSSELL v. SAM SOLOMON COMPANY" ], "opinions": [ { "text": "VAUGHN, Judge.\nTwo issues are brought for our review: whether Underwood\u2019s testimony concerning the statements and actions of defendant\u2019s employee should have been excluded and whether a directed verdict should have been granted to defendant. We answer both questions in the negative and reverse.\nThe following portions of Underwood\u2019s testimony were especially relevant to plaintiff\u2019s case:\nThe shelving I was shown was not a counter top as this. It was just open on the front and back. It was only three shelves on it when I saw it. It was glass shelving. ... Of course, the top piece was missing or one of the shelves was missing. As to what I did with regard to the shelving I was shown, I put my hand on the shelving and it was loose. . .. The shelving was not secured in any manner. It was not clamped on. It was inlaid with a bracket but it was not clamped down. At the time I touched it, it was loose. You could move it back end to end and it was moveable. It was not tight, secure.\nAfter reviewing his notes, Underwood further testified that Nichols had shown him the counter and \u201csaid that is the one that broke and that Dr. Russell got cut on.\u201d\nThis was not objectionable hearsay. Underwood\u2019s testimony as to what Nichols said as he showed him the counter was admissible as \u201ca part of the operative conduct itself ... offered for [its] own sake and not as evidence of the truth of any statement made ... .\u201d1 Stansbury, N.C. Evidence, \u00a7 159, at 534 (Brandis rev. 1973). It is unnecessary to consider whether Nichols\u2019 statement meets all the requirements for an admission of an agent against his principal. \u201c[A] statement accompanying an act is admissible either for or against the principal ... when the statement characterizes or qualifies the act, in which case it would be so admissible without regard to any question of agency, under one of the so-called res gestae principles.\u201d 2 Stansbury, swpra, \u00a7 169, at 18-19.\nUnderwood\u2019s testimony was also admissible for the purpose of corroborating plaintiffs testimony that defendant\u2019s courtroom exhibit was not an accurate replica of the counter that injured him. Plaintiffs argument at trial for admission was, therefore, entirely correct:\nThis man can testify to what he saw and observed. Now, this display case has been brought in and has sat here before the jury and Dr. Russell has been cross examined with regard to this display case; and, I think, that we can show through this witness that he approached an employee of the company who was present at the time the incident occurred and that he asked him to show him the area and the display case that was involved in this particular thing; and that he was shown a particular object and that it was not this particular case and I think that is proper at this point.\nIn addition, Underwood\u2019s description of the counter he was shown was relevant evidence tending to support an inference of defendant\u2019s negligence. Thus, it was prejudicial error to exclude Underwood\u2019s testimony.\nWe also agree with plaintiffs second contention that the doctrine of res ipsa loquitur should have been applied to the facts of this case. Res ipsa applies when direct proof of the cause of an injury is not available, the instrumentality involved in the accident is under the defendant\u2019s control, and the injury is of a type that does not ordinarily occur in the absence of some negligent act or omission. Snow v. Power Co., 297 N.C. 591, 256 S.E. 2d 227 (1979); Restatement (second) of Torts, \u00a7 328 D (1965). Res ipsa may not, however, be used to infer negligence from the mere fact of an accident or injury. O\u2019Quinn v. Southard, 269 N.C. 285, 152 S.E. 2d 538 (1967).\nOn this appeal, we must consider plaintiffs evidence as true, viewing it in the light most favorable to him with the benefit of every reasonable inference. Summey v. Cauthen, 283 N.C. 640, 197 S.E. 2d 549 (1973). His evidence tended to show the following. He was injured by a display counter which was under defendant\u2019s control. No one else was present when the injury occurred so only plaintiff could testify as to how it happened. He stated the shelving \u201cgave way\u201d as he placed his hand upon the shelf and that it was \u201cinstantaneous.\u201d The broken shelving was not presented by defendant at any time for testing or examination. It was discarded after the accident. Direct proof of the cause of the counter\u2019s collapse was, therefore, unavailable at trial. Nevertheless, in the ordinary course of things, a display counter does not shatter when one places his hand on it exerting only minimal pressure. See Young v. Anchor Co., Inc., 239 N.C. 288, 79 S.E. 2d 785 (1954) (escalator suddenly jerked, stopped and quickly moved forward); Page v. Sloan, 12 N.C. App. 433, 183 S.E. 2d 813, affd., 281 N.C. 697, 190 S.E. 2d 189 (1972) (explosion of an electric water heater).\nA directed verdict can be granted only when plaintiff\u2019s evidence, as a matter of law, is insufficient to justify a verdict in his favor. See G.S. 1A-1, Rule 50. One of defendant\u2019s grounds for a directed verdict was that plaintiffs evidence failed to disclose any actionable negligence. We do not agree. Res ipsa loquitur provided an inference of defendant\u2019s negligence sufficient to authorize, but not compel, a verdict for plaintiff. Lentz v. Gardin, 294 N.C. 425, 241 S.E. 2d 508 (1978). Therefore, it was error to grant a directed verdict to defendant on that ground. Husketh v. Convenient Systems, 295 N.C. 459, 245 S.E. 2d 507 (1978); McPherson v. Hospital, 43 N.C. App. 164, 258 S.E. 2d 410 (1979). Defendant also requested a directed verdict on the ground that plaintiff was contributorily negligent. Plaintiffs evidence was that he did not lean upon the shelf and that he exerted only minimal pressure upon it. This does not disclose contributory negligence as a matter of law.\nThe judgment appealed from is reversed.\nReversed.\nJudges Martin (Robert M.) and Webb concur.", "type": "majority", "author": "VAUGHN, Judge." } ], "attorneys": [ "James R. Nance, Jr., for plaintiff appellant.", "Anderson, Broadfoot and Anderson, by Henry L. Anderson, Jr., for defendant appellee." ], "corrections": "", "head_matter": "DENNIS B. RUSSELL v. SAM SOLOMON COMPANY\nNo. 8012SC297\n(Filed 7 October 1980)\n1. Evidence \u00a7 33- testimony not hearsay\nIn an action to recover for injuries received by plaintiff from a glass display counter in defendant\u2019s store, a witness\u2019s testimony that an employee of defendant showed him a counter and \u201csaid that is the one that broke and that [plaintiff] got cut on\u201d was not objectionable hearsay but was admissible as a part of the operative conduct itself offered for its own sake and not as evidence of the truth of any statement made; furthermore, such testimony was also admissible for the purpose of corroborating plaintiffs testimony that defendant\u2019s courtroom exhibit was not an accurate replica of the counter which injured him.\n2. Negligence \u00a7 31- shattering of glass display shelf \u2014 res ipsa loquitur\nThe doctrine of res ipsa loquitur applied to provide an inference of negligence by defendant in an action to recover for injuries received by plaintiff when a glass display shelf in defendant\u2019s store shattered where plaintiffs evidence tended to show that the display was under defendant\u2019s control; no one else was present when the injury occurred so only plaintiff could testify as to how it happened; the shelving instantaneously \u201cgave way\u201d as plaintiff placed his hand upon it; plaintiff did not lean upon the glass shelf and exerted only minimal pressure upon it; and the broken shelf was not presented by defendant at any time for testing and was discarded after the accident.\nAppeal by plaintiff from Braswell, Judge. Judgment entered 23 October 1979 in Superior Court, Cumberland County. Heard in the Court of Appeals 18 September 1980.\nPlaintiff sued for injuries received from a glass display counter in defendant\u2019s store. At the conclusion of plaintiffs evidence on negligence, the court granted defendant\u2019s motion for a directed verdict.\nOn 15 June 1976, plaintiff, with his wife and some friends, went to defendant\u2019s store in Fayetteville to look for a canasta tray. They dispersed into different departments to find this item. Plaintiff asked a clerk in the camera department about a tray and then walked over to the next area, the cosmetic department. There were no store employees there. Only plaintiff could testify as to how the accident happened.\n(Indicating) Exactly what I did was to place my hand upon the glass counter so as not to disturb the articles that were displayed on it. There were men\u2019s cologne placed on it at the time I walked up to it. As I approached the counters and placed my hand right here (indicating on shelf) so that I wouldn\u2019t disturb anything, and looked into the inside, because the small racks were very difficult to see, and as I was standing there looking at it, this thing gave way. As to what I actually did I placed my hand here about like I am doing now (indicating on shelf) and looked inside. I exerted minimal force upon my hand as I sat it down upon that shelf. I did not lean or in any way rest upon the shelf. As I stood there with my hand on the shelf, the shelf caved in. I felt pain \u2014 instant pain in my arm and then as I pulled my arm back away from the counter, it was gushing blood then. (Witness was instructed to be seated). Before I felt pain, I did not feel the shelf do anything, it was instantaneous. I heard crashing noises as everything was going; but again, it was instantaneous. I moved my arm away and in the process of moving, the shelves sliced into my wrist. ... At that point we started moving away \u2014 the parties with me, and some store people came over at this point including Mr. Nichols. Mr. Nichols is the gentleman seated in the back in the glasses. I did not see anyone else that I recall at this time. If these are employees, I don\u2019t recognize or recall any female people being there. I remember Mr. Nichols and some other men there. At that point we went to the right front of the building which is by the restrooms where they have a little table, like a small lounge there; and someone in the store called an ambulance or rescue team to come over. In the meantime, I gave them some information as to whatever they were asking. ...\nOn cross-examination, plaintiff denied that he had drunk any type of whiskey before entering the store. He further stated:\nI did not come up to a display case similar to that [defendant\u2019s courtroom exhibit]. I did not come up initially and put my right hand there in an attempt to look at some items that were on the back side. ... I did not take my right hand and lean on the shelf of the counter and did not lean over the counter and put my hand there to catch my balance.\nPlaintiff then demonstrated how he placed his hand on the counter using the one defendant had brought to the courtroom. Nevertheless, he explained the difficulty in doing so since defendant\u2019s exhibit was not like the display counter which had injured him. He also said that he had not seen any signs like \u201cplease do not lean on the counter.\u201d\nTommy Underwood, an investigator, was called as a witness for plaintiff. He said that he went to defendant\u2019s store in early July 1976 and had a conversation with a store employee, William Nichols. Underwood requested Nichols to show him something. The rest of Underwood\u2019s testimony was taken by voir dire examination. He testified that Nichols took him to the cosmetics counter and showed him some glass shelving. Underwood said this shelving was not like the counter top entered as defendant\u2019s exhibit and described it as being loose, movable and unsecured. He stated that he did not see the actual shelving that injured plaintiff because Nichols told him it had been cleaned up and thrown away. Defendant objected to \u201cany testimony by this witness on any conversation he had with Mr. Nichols as being incompetent and hearsay.\u201d The court sustained defendant\u2019s objection, and Underwood was not allowed to give this testimony before the jury.\nJames R. Nance, Jr., for plaintiff appellant.\nAnderson, Broadfoot and Anderson, by Henry L. Anderson, Jr., for defendant appellee." }, "file_name": "0126-01", "first_page_order": 154, "last_page_order": 160 }