Appeal 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.
Hedrick, Judge. Judges Clark and Martin (Harry C.) concur.
First, 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 "because [plaintiff] was or should have been aware of the condition which he alleged resulted in his injury."
In ruling on defendant's 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, "all evidence which supports plaintiff's 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." 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.
The parties stipulated before trial to the fact that plaintiff was an independent contractor. When he came onto the defendant's premises to pour the concrete shelf, he was also an invitee to whom defendant owed a duty of "due care under all the circumstances." 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:
One going upon another's 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.
41 Am. Jur. 2d, Independent Contractors § 27 (1968). See also Deaton v. Board of Trustees of Elon College, 226 N.C. 433, 38 S.E.2d 561 (1946).
Viewing 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's 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 "assumed" 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's failure to brace and to warn constituted actionable negligence and, further, whether such negligence, if any, was a proximate cause of the plaintiff's injuries.
We next consider the defendant's 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's motions for directed verdict and judgment notwithstanding the verdict.
By 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's expert witness, Rowe, to answer certain hypothetical questions regarding his opinion as to what caused the wall to fall. Defendant first argues ...