{ "id": 8519755, "name": "CHARLES WOODY MOON, Plaintiff v. BOSTIAN HEIGHTS VOLUNTEER FIRE DEPARTMENT, Defendant", "name_abbreviation": "Moon v. Bostian Heights Volunteer Fire Department", "decision_date": "1990-01-16", "docket_number": "No. 8919SC504", "first_page": "110", "last_page": "114", "citations": [ { "type": "official", "cite": "97 N.C. App. 110" } ], "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": "257 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "447" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555569 ], "year": 1979, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0654-01" ] }, { "cite": "290 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571152 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0478-01" ] }, { "cite": "328 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "890" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525307 ], "year": 1985, "pin_cites": [ { "page": "544-45" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0543-01" ] }, { "cite": "294 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570630, 8570799, 8570673, 8570711, 8570745 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0392-01", "/nc/306/0392-05", "/nc/306/0392-02", "/nc/306/0392-03", "/nc/306/0392-04" ] }, { "cite": "289 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 525", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522384 ], "year": 1982, "pin_cites": [ { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0525-01" ] }, { "cite": "309 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "581" }, { "page": "581" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 609", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525303 ], "year": 1983, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0609-01" ] }, { "cite": "329 S.E.2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "337-8" } ], "opinion_index": 0 }, { "cite": "313 N.C. 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726773 ], "year": 1985, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0362-01" ] }, { "cite": "277 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "818" }, { "page": "818" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 139", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170072 ], "year": 1981, "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0139-01" ] }, { "cite": "252 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "834" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549003 ], "year": 1979, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0120-01" ] } ], "analysis": { "cardinality": 472, "char_count": 9085, "ocr_confidence": 0.764, "pagerank": { "raw": 1.063245729754986e-07, "percentile": 0.5576471832913811 }, "sha256": "2349688844afdb4ed6bab683a1681f80665744cdc32b11ba2bbcdaa697de5c0d", "simhash": "1:7160c47bae64cc74", "word_count": 1452 }, "last_updated": "2023-07-14T17:09:00.422652+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Phillips and Greene concur." ], "parties": [ "CHARLES WOODY MOON, Plaintiff v. BOSTIAN HEIGHTS VOLUNTEER FIRE DEPARTMENT, Defendant" ], "opinions": [ { "text": "ARNOLD, Judge.\nPlaintiff first assigns error to the trial court\u2019s granting defendant\u2019s motion for judgment notwithstanding the verdict. We agree and accordingly reverse.\nA motion for judgment notwithstanding the verdict is a motion that judgment be entered in accordance with the movant\u2019s earlier motion for a directed verdict and notwithstanding the contrary verdict actually returned by the jury. Nytco Leasing v. Southeastern Motels, 40 N.C. App. 120, 132, 252 S.E.2d 826, 834 (1979). The same standards which are applied to a motion for directed verdict are applicable to a motion for judgment notwithstanding the verdict. Id. Both motions test the legal sufficiency of the evidence to take the case to the jury. Everhart v. LeBrun, 52 N.C. App. 139, 141, 277 S.E.2d 816, 818 (1981). In ruling on defendant\u2019s motion for a directed verdict, plaintiffs evidence must be taken as true, and all the evidence must be considered in the light most favorable to plaintiff, giving him the benefit of every reasonable inference, with contradictions, conflicts and inconsistencies resolved in plaintiffs favor. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 369, 329 S.E.2d 333, 337-8 (1985). Under these principles defendant is not entitled to judgment notwithstanding the verdict unless plaintiff has failed as a matter of law to establish the elements of negligence, Everhart at 141, 277 S.E.2d at 818, or unless the evidence establishes plaintiffs contributory negligence so clearly that no other reasonable inference could be drawn. Clark v. Moore, 65 N.C. App. 609, 611, 309 S.E.2d 579, 581 (1983).\nApplying these principles to the evidence here, we find the following:\nPlaintiff entered defendant\u2019s firehouse through a personnel door. There was a six inch step up from the outside to the top of the threshold of the personnel door and a two and a quarter inch step down from the top of the threshold to the inside floor of the firehouse. Thus, the firehouse floor was three and three-quarters inches higher than the ground outside the firehouse. A licensed engineer and architect testified that in his opinion the construction of the firehouse door violated the North Carolina Building Code which prohibits a riser, which is the vertical portion of a stair step, at exit doors. A violation of the North Carolina Building Code is negligence per se. Sullivan v. Smith, 56 N.C. App. 525, 527, 289 S.E.2d 870, 871, disc. rev. denied, 306 N.C. 392, 294 S.E.2d 220 (1982). The engineer\u2019s testimony thus permitted a finding of negligence in the construction of the firehouse door.\nFurther evidence permitted the finding that the negligent construction of the firehouse door proximately caused plaintiff\u2019s fall and resulting injuries. Plaintiff testified that he saw the step up to the top of the threshold, but not the step down, and when he stepped over the threshold onto the firehouse floor below, he lost his balance and fell. He further testified that the difference in elevation between the top of the threshold and the firehouse floor caused him to fall.\nTestimony from plaintiff and his two doctors permitted the finding that plaintiff tore cartilage in his knee as a result of his fall. By the foregoing evidence plaintiff established the elements of negligence, and defendant is not, therefore, entitled to judgment notwithstanding the verdict on this basis.\nPlaintiff acknowledged on cross-examination that had he stopped at the entrance and stood and looked around, he probably would have seen the difference in elevation between the threshold and the firehouse floor. Defendant presented testimony from several witnesses who had used the personnel door and seen others use the door without stumbling or falling. While this evidence could have supported a jury finding of contributory negligence, this was not the only reasonable inference a jury could draw. Defendant was not, therefore, entitled to judgment notwithstanding the verdict on the basis of contributory negligence by plaintiff. See Clark at 611, 309 S.E.2d at 581.\nPlaintiff next assigns as error the trial court\u2019s denial of plaintiff\u2019s motion for a new trial, pursuant to N.C.R. Civ. Proc. 59, on the issue of damages. Plaintiff contends that the jury award of $2,500 for damages against defendant was inadequate since plaintiff\u2019s evidence showed medical expenses in excess of $4,900. In light of the standard for appellate review and the evidence presented at trial, we reject this assignment of error.\nA motion for a new trial on the grounds of inadequate damages is addressed to the sound discretion of the trial judge and may be reversed on appeal only where an abuse of discretion is clearly shown. Pearce v. Fletcher, 74 N.C. App. 543, 544-45, 328 S.E.2d 889, 890 (1985), citing Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982).\nA review of the evidence reveals the following: Testimony from plaintiff\u2019s orthopedic surgeon showed that some of plaintiff\u2019s surgery was to relieve arthritic symptoms unrelated to the fall at defendant\u2019s firehouse. The surgeon also testified that the arthritis-related surgery, not the surgery to remove cartilage torn in plaintiff\u2019s fall, caused plaintiff\u2019s post-surgery complications. Although the surgeon testified that he could not rule out whether plaintiff\u2019s arthritis might have contributed to his fall, the jury could weigh the evidence and determine questions of fact. See Coletrane v. Lamb, 42 N.C. App. 654, 657, 257 S.E.2d 445, 447 (1979). The foregoing evidence shows the trial judge did not abuse his discretion in denying plaintiff\u2019s motion for a new trial on the issue of damages.\nThe ruling on plaintiff\u2019s motion for new trial is affirmed. However, the judgment notwithstanding the verdict is reversed, and the cause remanded to the trial court to reinstate judgment upon the jury\u2019s verdict.\nAffirmed in part, reversed in part, and remanded.\nJudges Phillips and Greene concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Donald L. Weinhold, Jr. for plaintiff appellant.", "Weinstein & Sturges, by James P. Crews, for defendant appellee." ], "corrections": "", "head_matter": "CHARLES WOODY MOON, Plaintiff v. BOSTIAN HEIGHTS VOLUNTEER FIRE DEPARTMENT, Defendant\nNo. 8919SC504\n(Filed 16 January 1990)\n1. Negligence \u00a7 57.4 (NCI3d)\u2014 step at firehouse exit \u2014 violation of building code \u2014 negligence per se \u2014 negligence in construction as cause of fall \u2014 sufficiency of evidence\nIn an action to recover for injuries sustained in a fall at defendant\u2019s firehouse the trial court erred in entering judgment n.o.v. for defendant where a licensed engineer and architect testified that in his opinion the construction of the firehouse door violated the N.C. Building Code which prohibits a riser, the vertical portion of a stair step, at exit doors; a violation of the N.C. Building Code is negligence per se; evidence permitted the finding that the negligent construction of the firehouse door proximately caused plaintiffs fall and resulting injuries in that plaintiff lost his balance because of the difference in elevation between the top of the threshold and the firehouse floor; plaintiff tore cartilage in his knee as a result of his fall; and the evidence did not show that plaintiff was contributorily negligent as a matter of law in failing to notice the difference in elevation between the threshold and the firehouse floor.\nAm Jur 2d, Premises Liability \u00a7\u00a7 32, 257.\n2. Rules of Civil Procedure \u00a7 59 (NCI3d)\u2014 new trial on issue of damages \u2014 denial proper\nThe trial court did not err in denying plaintiff\u2019s motion for a new trial on the issue of damages where plaintiff contended that the jury award of $2,500 was less than his medical expenses which the evidence showed to be $4,900, but the evidence in fact showed that some of plaintiff\u2019s surgery was to relieve arthritic symptoms unrelated to the fall in defendant\u2019s firehouse, and the arthritis related surgery, not the surgery to remove cartilage torn in plaintiff\u2019s fall, caused plaintiff\u2019s post-surgery complications.\nAm Jur 2d, Damages \u00a7\u00a7 208, 933.\nOn appeal from judgment entered 6 February 1989 by Judge W. Douglas Albright in ROWAN County Superior Court. Heard in the Court of Appeals 13 November 1989.\nPlaintiff brought this action seeking damages for injuries suffered as a result of a fall at the Bostian Heights Volunteer Fire Department firehouse. Plaintiff alleged that defective construction of the doorstep to the firehouse caused his fall. Defendant, in its answer, denied plaintiffs allegations of negligence and, in the alternative, alleged plaintiffs contributory negligence in defense of plaintiffs claim.\nDefendant made motions for directed verdict at the close of plaintiffs evidence and at the close of all the evidence, both of which were denied. The case was tried to a jury and the jury returned a verdict in favor of plaintiff, awarding him $2,500 in damages. Plaintiff moved pursuant to N.C.R. Civ. Proc. 59 for a new trial on thp damages issue alone. Defendant moved pursuant to N.C.R. Civ. Proc. 50 for judgment notwithstanding the verdict. The judge denied plaintiffs motion and granted defendant\u2019s motion. From these rulings, plaintiff appeals.\nDonald L. Weinhold, Jr. for plaintiff appellant.\nWeinstein & Sturges, by James P. Crews, for defendant appellee." }, "file_name": "0110-01", "first_page_order": 138, "last_page_order": 142 }