#### ELIZABETH MULFORD v. COTTON STATES HOTEL COMPANY, Trading as KING COTTON HOTEL.

(Filed 25 May, 1938.)

1. Negligence § 191) — Nonsuit on ground of contributory negligence may be granted only when but one inference can be drawn from evidence.

Since the granting of a motion to nonsuit on the ground of contributory negligence involves a determination by the court not only that plaintiff was guilty of negligence but also that such negligence was a proximate cause of the injury, such motion should be denied except in exceptional eases strictly within the rule that the motion may be granted only when but one inference may be reasonably drawn from the evidence.

3. Negligence § 4d — Evidence held not to show contributory negligence as matter of law on part of invitee injured in fall.

The evidence tended to show that plaintiff, in going from a merchandise exhibit in the hotel operated by defendant, entered the coffee shop in the building from the basement entrance, that the coffee shop was on a higher level than the basement floor, but that the walls were of the same color, that plaintiff negotiated the step to the coffee shop without mishap, but that after lunch, in leaving the coffee shop by the same entrance, she failed to see the difference in the levels and fell to her injury, that the coffee shop was well lighted, but that the route along the basement was very dimly lit. Held: Defendant’s motion to nonsuit on the ground of contributory negligence should have been denied, since although the evidence discloses that plaintiff negotiated the entrance in safety in entering the coffee shop, it is a matter of common knowledge that the eye detects difference in levels by light and shadow, and that the ability to detect such difference is affected by whether one is facing or going away from light, and that color sometimes plays a part, and therefore, under the circumstances, whether plaintiff should have seen the step and avoided the injury is a question for the determination of the jury.

Appeal by plaintiff from Bivens, J., at January Civil Term, 1938, of Guilford. Reversed.

That part of the evidence which is pertinent to this appeal is substantially as follows:

Plaintiff was a saleswoman in the Ellis Stone Store at Greensboro, and was charged with the duty of purchasing goods for her department. In the performance of that duty she went to the King Cotton Hotel, inspected a stock of goods on exhibit there, and made purchases therefrom. At lunch time she had not completed her purchases, and was invited by the saleswoman in charge of the stock to lunch with her in the hotel coffee shop.

Plaintiff testified that she had never been to the coffee shop before; and that she entered it by the same way she subsequently made her exit. The light was very dim and “dingy” at the entrance of the coffee shop, *604and in tbe basement along tbe route sbe bad to traverse. Tbe basement floor and tbe entrance to tbe coffee sbop were on different levels, requiring a step up or down, according as sbe entered or made ber exit. “There was no notice or sign to step down. There was no band-railing advising you that there was a change in tbe level.”

Tbe plaintiff testified that sbe, automatically, or subconsciously stepped up that step in entering tbe coffee sbop. Tbe sbop was lighted by electricity and daylight, and was “brilliantly lighted in comparison with tbe basement entrance.”

On going out of tbe coffee sbop, sbe testifies, tbe exit as it looked to ber was very dim. “As I walked out it all looked on tbe same level to me. I did not see any difference at all.”

The plaintiff fell to tbe floor and was seriously injured.

At the conclusion of tbe plaintiff’s testimony, tbe defendant moved for judgment as of nonsuit, which motion was allowed, and plaintiff appealed.

Smith, Wharton & Hudgins for appellee.

Herbert S. Falhfor appellant.

Seawell, J.

Tbe defendant frankly admits that there is sufficient evidence of negligence on tbe part of tbe defendant to go to tbe jury, and such admission is in accord with tbe inferences to be drawn from tbe evidence. Tbe only question necessary to a decision of this case is: Was tbe plaintiff, under tbe evidence, guilty of such contributory negligence as would bar ber recovery, and as would justify tbe court in rendering a judgment of nonsuit?

In support of tbe contention that tbe plaintiff was properly nonsuited on tbe evidence because of ber contributory negligence, tbe defendant points out that plaintiff bad once traversed tbe dangerous passage on her way to tbe coffee.sbop, and bad sustained ber injury only on ber return trip from tbe sbop; that sbe bad become so familiar with tbe surroundings, and particularly tbe arrangement of tbe step, tbe difference in level, tbe lighting, and other details to which sbe attributes ber injury, that tbe court must necessarily find that ber own negligence contributed to tbe injury.

This case is typical of tbe difficulties which sometimes confront the court in passing upon tbe question whether, under tbe evidence, there is such contributory negligence as would bar recovery, and justify tbe court in taking tbe case from tbe jury.

From remote times tbe court has undertaken to declare what is negligence per se on tbe part of a defendant when there is only one reasonable inference to be drawn from tbe evidence, but has never, as far as we are aware, undertaken to declare, without tbe intervention of tbe jury, that such negligence was tbe proximate cause of an injury. Since Neal *605 v. R. R., 126 N. C., 634, tbe Court bas undertaken to say, in appropriate cases, wbat is contributory negligence, in law, barring plaintiff’s right of recovery, and to dismiss or nonsuit tbe action accordingly. In doing so tbe court necessarily passes upon tbe question of proximate, or contributing, cause as shown by tbe evidence of plaintiff’s conduct. There is suggested, therefore, a danger of invading tbe province of tbe jury.

Since counsel insist upon a more liberal exercise of this power of tbe court, citing borderline cases in support of their contentions, one might get tbe impression that tbe court bas not been as meticulous as it bas intended to be in respecting tbe prerogatives of tbe jury.

Since, as stated, on motions of this kind tbe court must necessarily deal with evidence tending to show tbe plaintiff’s negligence as well as its proximate causal relation to tbe injury, no mere conviction on tbe part of tbe judge, however profound, that tbe plaintiff ought not to recover upon tbe evidence because of contributory negligence, should be sufficient to justify taking tbe case from tbe jury. Tbe power to take a case away from tbe jury upon a favorable finding of tbe court on defendant’s affirmative plea of contributory negligence is exceptional and should be exercised only within tbe strict limits of its charter.

In Neal v. R. R., supra, tbe first case in this State clearly recognizing such power, tbe condition on which tbe court may exercise it is thus stated: “But when tbe defendant demurred to tbe plaintiff’s evidence, and but one construction can reasonably be drawn from it, that is, it could not reasonably mean different things, ... it certainly became a question of law for tbe court.”

Tbe principle is stated in a cencurring opinion in that case, as follows: “When tbe facts are clearly settled, from which only one inference can be drawn, tbe question is then one of law, for tbe court to decide, and in such case tbe court should take tbe case from tbe jury and direct a nonsuit or verdict as tbe case may be.” This principle bas been frequently affirmed as it applies to both tbe negligence of tbe defendant and contributory negligence of tbe plaintiff, when these are subject to determination by tbe court. Wadsworth v. Trucking Co., 203 N. C., 730, 166 S. E., 898; Corum v. Tobacco Co., 205 N. C., 213, 171 S. E., 78; Manufacturing Company v. R. R., 122 N. C., 881; Brown v. Durham, 141 N. C., 249, 53 S. E., 513; Foy v. Winston, 135 N. C., 439, 47 S. E., 466; Tillett v. R. R., 118 N. C., 1031; House v. R. R., 131 N. C., 103, 42 S. E., 533, and citations.

Applying tbe principle here, we find tbe present case falls entirely without tbe rule.

Counsel for appellee rely upon King v. Thackers, Inc., 207 N. C., 869, 178 S. E., 95, as paralleling this case in essential parts and strongly supporting tbe contention that tbe plaintiff here was properly nonsuited. But in that case tbe plaintiff saw tbe dangerous object and stepped into it. Under tbe evidence in this case, we cannot say that tbe circum*606stance that plaintiff passed through this way a short while before sustaining her injury could be held, as a matter of law, to have given her such knowledge of the conditions as would make her guilty of contributory negligence on her return trip.

The eye receives impressions through appearances only. It is conceivable that when plaintiff came out of the coffee shop these appearances were quite different — in fact, that is the unavoidable inference from her testimony. Not that the lights had been shifted or altered in their intensity, but the eyes of the observer had been shifted to an opposite direction, and the incidence of the light upon the eye and upon the objects visualized was different. We get our impressions of the shape of objects and the continuity of surfaces largely from the disposition of light and shadow, although color sometimes plays a part. Usually the stereoscopic effect, afforded by vision with both eyes, gives us a sense of perspective — of the relative positions and distances of objects. But this effect is not of much service when we are dealing with flat surfaces, which, under the lighting conditions, may present an appearance of continuity. These things are matters of common knowledge.

Besides this, the plaintiff testified that she came out of a brilliantly lighted room into a dimly lighted basement; and it may be inferred that her eyes had not become accustomed to the difference in illumination when she encountered the step. She elsewhere testified that the floors were uniformly colored, and so were the walls.

We cannot say that, with respect to contributory negligence, there may be drawn from this evidence only one inference, and that unfavorable to the plaintiff. We do not find contributory negligence on the part of the plaintiff established with that clarity that would justify taking the case from the jury.

The judgment of nonsuit is

Reversed.