Diamond v. McDonald Service Stores

The case turns on two questions: (1) Was it the duty of the defendant to warn the plaintiff of the presence of inflammable material in the pit? (2) Was plaintiff contributorily negligent? Both questions, we apprehend, should be submitted to the jury for answer under proper instructions from the court. Ellington v. Ricks, 179 N. C., 686, 102 S. E., 510; Evans v. Lbr. Co., 174 N. C., 31, 93 S. E., 430; Absher v. Raleigh, ante, 567; Cole v. R. R., ante, 591. See Cook v. Mfg. Co., 183 N. C., 48, 110 S. E., 608. “The rule applicable in cases of this kind is, that if diverse inferences may reasonably be drawn from the evidence, some favorable to the plaintiff and others to the defendant, the cause should be submitted to the jury for final determination” — *634 Adams, J., in Hobbs v. Mann, 199 N. C., 532, 155 S. E., 163. See Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601; Wadsworth v. Trucking Co., 203 N. C., 730, 166 S. E., 898; Ridge v. High Point, 176 N. C., 421, 97 S. E., 369.

On motion to nonsuit, the plaintiff is entitled to the 'benefit of every fact and inference of fact pertaining to the issues involved, which may reasonably be deduced from the evidence. Cole v. R. R., supra; James v. Coach Co., 207 N. C., 742, 178 S. E., 607; Nash v. Royster, 189 N. C., 408, 127 S. E., 356.

Negligence is a breach, of some duty imposed by law. It is doing other than, or failing to do, what a reasonably prudent man, similarly situated, would have done. Cole v. R. R., supra. In short, negligence is a want of due care; and due care means commensurate care under the circumstances. Small v. Utilities Co., 200 N. C., 719, 158 S. E., 385. The lack of diligence, or want of due care, may consist in doing the wrong thing at the time and place in question, or it may arise from inaction or from doing nothing when something should have been done. Moore v. Iron Works, 183 N. C., 438, 111 S. E., 776. The standard is always the conduct of the reasonably prudent man, or the care which a reasonably prudent man would have used under the circumstances. Tudor v. Bowen, 152 N. C., 441, 67 S. E., 1015. The rule is constant, while the degree of care which a reasonably prudent man exercises varies with the exigencies of the occasion. Small v. Utilities Co., supra; Fitzgerald v. R. R., 141 N. C., 530, 54 S. E., 391; Hanes v. Shapiro, 168 N. C., 24, 84 S. E., 33; 9 R. C. L., 1200.

As the principles involved are well settled, and the case is to be tried again, we refrain from discussing the evidence, so that, on the rehearing neither side may be benefited or prejudiced thereby.

Reversed.