#### BETTY HARRISON v. ROBERT A. WILLIAMS, JR., Trading and Doing Business as HENRY’S DRIVE-IN RESTAURANT and TRAILER PARK.

(Filed 30 October 1963.)

1. Negligence § 37a—

Evidence that -patrons of defendant’s dining room frequently went into the kitchen are-a of the .premises to pay their -bills and that on -the occasion in question plaintiff was directed by defendant’s employee to go into that area to purchase cigarettes at a vending machine, held, sufficient to isupp-ort a finding that plaintiff was >an invitee at the time and place of her fall in the kitchen area.

2. Negligence § 37b—

A proprietor owes his -invit-easi the legal duty to maintain title aisles and- passageways of his place of business in -such condition as a reason*393ably careful and prudent person would deem sufficient to protect patrons from danger wliile exercising ordinary care for tbeir own safety.

3. Same—

Ordinarily, the existence of a step between floor levels raises no inference of negligence on Ms part of the proprietor.

4. Negligence § 37f—

Evidence to the effect that plaintiff, in going as directed by defendant’s employee to .purchase cigarettes at a vending machine, failed to see a step downward between floor levels because the area was “dimly lighted,” without evidence as to the amount, kind, or location of the lights then burning or the difference in the floor levels, is held insufficient to be submitted to the jury on the issue of defendant’s negligence.

Appeal by -plaintiff from Parker, J., May Civil Session 1963 of New HANOVER.

Plaintiff's action is -to recover damages for personal injuries she sustained ais .a result of a fall while in defendant’s place of business, known' as “Henry’s Dxive-In Restaurant and Trailer Park,” located on the west aide of Highway #421, south of Wilmington, N. C. Defendant was engaged in the business of “preparing and serving to ‘Drive-In -and diming -room’ customers plate lunches, sandwiches, cigarettes, -soft drinks, and other lawful beverages.”

Plaintiff alleged her fall and injuries were proximately caused by the negligence of defendant in respects -referred to- in the opinion.

Answering, defendant denied negligence and conditionally pleaded the -contributory negligence of plaintiff.

The only evidence was that offered by plaintiff. Exclusive of the testimony of a doctor, /the evidence consists of the testimony of (1) plaintiff, (2) Michael A. Harrison, plaintiff’s husband, (3) George Montford, and (4) Mary Hines. The pertinent evidence -as to plaintiff’s /actions prior to her fal-1 and -injury, summarized or quoted, is set forth below.

On the night of September 5, 1961, Mr. Montford, accompanied 'by plaintiff -and her husband, -drove to- defendant’s place of business. They arrived “-about 8:40” and parked “almost in front of the main dining room.” While so parked, a 7-Up was ordered for each of the men- and a Coca-Cola for plaintiff. They were served. Two “girls,” Mrs. Lou Hall and Mo®. Sadie West, were waiting on the -customers in the parked cars.

A “few minutes” — “about 15 -or 20 minutes” after their -arrival, plaintiff -told her -husband she -was going to the ladies’ rest room and got out of -the oar. Since “the girls were mighty -busy and yo-u could not flag or yell them d-own,” plaintiff’® husband banded -her a dollar bill and -asked her to bring him “a pack of cigarettes.”

*394Plaintiff “had been, in ¡this Drive-In on numerous occasions before /this accident” but she and ¡those with heir had always gone “in the second dining room to eat.” On this occasion, ’plaintiff entered “the main dining room.” The ladies' room was in “the large dining room.” When' plaintiff “was there before,” there “was a cigarette machine in the lower comer” but “it was missing.” No one was in “this Dining Room.” She looked for a waitress but there w>as no waitress in the dining room (s). The “girls” were outside. On previous occasions, ¡plaintiff and her husband had gotten .their own cigarettes “out ¡of the machines.”

Between the main or large dining room and .the kitchen -area, there was a “small dlinimg room,” sometimes ¡reiferred to as the “second dining room.” Plaintiff walked “through the large dining room, . . . through the small dining room to the kitchen.” There she found a girl known to her as “Ann,” who was sitting “at a little counter, . . . sitting there working.” Plaintiff told Ann ¡she wanted to get some cigarettes, handed Ann .the dollar and Ann gave plaintiff the change. Ann told plaintiff "the cigarette machine is down there,” pointing to. the end of the counter. Ann, the only girl “in there,” had her bands full. Plaintiff walked “into the area between the kitchen and the counter by direction.” When plaintiff “started to. come around the counter,” she “didn’t see the ©tap-down” 'and fell.

Other evidence ¡bearing upon the alleged negligence of defendant will ¡be ¡set forth in .the opinion.

At the conclusion of plaintiff's evidence, the court, allowing defendant's motion therefor, entered judgment of involuntary nonsuit. Plaintiff excepted and appealed.

Wm. K. Rhodes, Jr., for plaintiff appellant.

Royce S. McClelland and L. Bradford Tillery for defendant appellee.

Bobbitt, J.

The only question is whether the court erred ,in granting defendant’s motion for judgment ¡of involuntary nonsuit. Decision depends upon whether the evidence, when ¡considered in the light most favorable to plaintiff, is sufficient to support a finding that plaintiff’s fall and injuries were proximately ¡caused by the negligence of defendant.

It is unnecessary to restate the familiar and well .settled general legal principles pertinent to decision on this appeal. This has been ¡done in numerous oases including the following: Reese v. Piedmont, Inc., 240 N.C. 391, 82 S.E. 2d 365; Sledge v. Wagoner, 248 N.C. 631, 104 S.E. 2d 195; Skipper v. Cheatham, 249 N.C. 706, 107 S.E. 2d 625; Garner v. Greyhound Corp., 250 N.C. 151, 108 S.E. 2d 461, 81 A.L.R. 2d 741.

*395Defendant contends pl-aintiff fell in a portion of his premises not designed for .use by patrons and was not an invitee with reference to the place where she fell. However, there was evidence that patrons of the dining rooms frequently went into, the kitchen area of the premises to pay /their bills. Too, there was evidence that plaintiff, having obtained change for the express purpose of buying cigarettes, was proceeding as directed by defendant’s employee. Cupita v. Country Club, 252 N.C. 346, 113 S.E. 2d 712, cited by defendant, is readily distinguishable. In our view, there was sufficient evidence to support a jury finding that plaintiff was an invitee at the time and place of her fall and injury.

Defendant owed plaintiff, as invitee, the legal duty to maintain the aisles and passageways of its place of business in such condition as a reasonably careful and prudent proprietor would deem sufficient to protect patrons from danger while exercising ordinary care for their own safety. Skipper v. Cheatham, supra; Sledge v. Wagoner, 250 N.C. 559, 109 S.E. 2d 180.

“Generally, in the absence of some unusual condition, the employment of a step by the owner of a building because of a difference between levels is not a violation oif any duty to invitees.” Benton v. Building Co., 223 N.C. 809, 28 S.E. 2d 491; Reese v. Piedmont, Inc., supra; Garner v. Greyhound Corp., supra.

“Different floor levels .in private and public buildings, connected by steps, are so common that the possibility of their presence is anticipated by prudent persons. The construction is not negligent unless, by its character, location or surrounding conditions, -a reasonably prudent person would not be likely to expect a step or see it.” Garrett v. W. S. Butterfield Theatres, Inc. (Mich.), 246 N.W. 57. This statement is quoted with approval in Reese v. Piedmont, Inc., supra, and in Garner v. Greyhound Corp., supra. The mere fact there was a step downward or change in floor level raises mo inference of negligence against defendant. Reese v. Piedmont, Inc., supra; Annotation: 65 A.L.R. 2d 471, 482.

Plaintiff alleged the area in which the step was located “was not adequately lighted.” She alleged defendant was negligent in that he failed to provide sufficient light to disclose the step and failed otherwise to give warning thereof .and that, absent .sufficient lighting or warning, the step constituted a dangerous condition, and that in these respects defendant failed to exercise reasonable care to provide a reasonably safe aisle or passageway for use of his invitees-customers.

There was no allegation or evidence that the /step was defective in any respect. Plaintiff alleged it was “a steep .step downward,” descend*396ing from “one floor level down several inches to another floor level.” (Our ¿balice).

Plaintiff’s evidence .tend® to show -there was a step downward. No evidence was offered purporting to describe the step. The evidence is vague 'a© to its exact location. There is to evidence as to the difference in floor levels. If .the difference in floor levels was sufficient to- constitute ¡notice of the step, this legal principle would ibe pertinent: “Where a 'Condition, of premises is obvious to any ordinarily intelligent person, generally there -is no duty on the part of the owner of the premises to warn of that condition.” Benton v. Building Co., supra; Reese v. Piedmont, Inc., supra. Plaintiff testified she “was thoroughly familiar with the lay-out of that Drive-In.” However*, she also testified ¡she “had not been around that direction before.”

Plaintiff relies primarily upon her contention that the 'aisle or passageway she was directed to use, particularly the step, was insufficiently lighted. She 'alleged the .area where the cigarette vending machine was located “was dimly lighted” and that the- step' “could not be clearly seen or detected in the dim and insufficient light.”

Plaintiff’s husband testified the cigarette vending machine was in the area referred to as .the Grill; that the cash .register was in the Grill; and that “you had to- goi through the kitchen to gat to the Grill.” Presumably, although here as elsewhere the evidence is vague, there is no partition (between the 'area referred1 to as the kitchen -and the area referred to as the Grill. No evidence indicates the dimensions of kitchen, Grill or any other portion of defendant’s place of business. No. evidence indicates the height, length, etc., .of the counter ¡referred to' in plaintiff’s testimony. (Note: No diagram or photograph was offered to illustrate or explain testimony.)

Plaintiff testified “ (-i)t was dark in there” when she ¡started to come around the counter; .that ¡she “¡didn’t see the step-down”; that she “didn’t realize there was a step there”; and that “ (t)here was' overhead light, 'but in that cornel* there was not.” On eross-examination she testified: “The floor was not well lighted. At the floor there was no light. There were overhead lights. I didn’t look up to see what kind. There was not light enough where I stepped down. ... I am saying it was not light enough for me to ¡see .it automatically when I walked around -the corner. I didn’t know the ¡step-down was -there, and there were no ¡signs to .indicate there was one there.”

Mary Hines, a witness for plaintiff and a former employee of defendant, testified: “(T)'here were fiourescent lights overhead from the Grill but not over the 'step”; that “ (t)-here were three ¡but most of the time ¡only one on”; and tlhiat ¡she- was not working, was not present and *397did ¡mat know -what lights were on when plaintiff fell Plaintiff offered mo evidence as to. the location of the three overhead fiourescemt lights, or as to how many were burning on the acoasi-ani of plaintiff’s .fall.

The word “dark,” a relative term, used .by plaintiff on direct examination, must be considered with plaintiff’s testimony on cross-examination that “it was not light enough for (her) to. see it automatically when (she) walked around the corner.” (Our italics). This testimony suggests that plaintiff by the exercise of due care could have observed the .step but failed to do so. Plaintiff’s husband and Mootford had been patrons of defendant’s place of business on numerous prior occasions. Although they arrived on the scene shortly after plaintiff fell, they did not testify with reference to the step or with reference .to the location and number of lights.

Obviously, precise factual evidence was available. Suffice to say, plaintiff did not offer such evidence.

The conclusion -reached is that .the vague and indefinite evidence offered by plaintiff fails to disclose facts -essential to a determination as to plaintiff’s right to recover. Hence, on account of plaintiff’s failure to offer sufficient evidence to establish actionable negligence on the part of defendant, the judgment of involuntary nonsuit is -affirmed.

Affirmed.