Summary
In Sheets v. Sessions, 12 N.C. App. 283, 182 S.E.2d 873 (1971), the plaintiff was inspecting an apartment for the purpose of renting it when he fell, at nighttime, from the apartment's porch.
Summary of this case from Crane v. CaldwellOpinion
No. 7121SC432
Filed 25 August 1971
1. Appeal and Error 39 — docketing of record — dismissal of appeal Appeal is dismissed for failure of the appellant to docket the record on appeal within the time allowed by the rules of the Court of Appeals. Rule 5 of the Rules of Practice.
2. Landlord and Tenant 8 — action against landlord — personal injury to plaintiff — sufficiency of evidence Plaintiff's action to recover for personal injuries sustained when he fell from the porch of defendant's apartment building in the nighttime was properly dismissed by the trial court, where plaintiff's own evidence disclosed that he stepped out from a lighted kitchen onto an unfamiliar back porch in the dark without turning on the porch light and without even looking for the switch, which was easily accessible to the plaintiff.
APPEAL by plaintiff from Armstrong, Judge, 25 January 1971 Session of Superior Court held in FORSYTH County.
Wilson, Morrow Boyles by John F. Morrow for plaintiff appellant.
Womble, Carlyle, Sandridge Rice, by Allan R. Gitter for defendant appellee.
Plaintiff brought this action on 22 January 1970 to recover damages for personal injuries sustained by him on the night of 1 May 1967 when he fell from the porch of an apartment building owned by defendant in Winston-Salem, N.C. Plaintiff had gone to defendant's apartment building at approximately 8:30 p.m. on 1 May 1967 for the purpose of inspecting a vacant apartment with a view to renting it. Defendant's agent loaned plaintiff a key and permitted plaintiff to enter the apartment in the agent's absence. In the course of inspecting the apartment, plaintiff opened the back door from the kitchen and stepped out onto the back porch. He took one step, started to turn around, and in doing so fell from the porch to the ground, sustaining injuries. In his amended complaint, plaintiff alleged that defendant was negligent in failing to provide proper railing on the porch, in maintaining the porch with the right-hand side of the porch within one foot of the door facing exiting onto the porch, and in failing to warn the plaintiff of the dangerous conditions thereby created. Defendant denied that he was negligent and as an affirmative defense pleaded that plaintiff was contributorily negligent in walking onto the porch in the dark without turning on the back porch light.
At the close of plaintiff's evidence, defendant moved for a directed verdict on the grounds that plaintiff's evidence failed to show actionable negligence and showed contributory negligence on the part of the plaintiff as a matter of law. From judgment allowing the motion and dismissing the action, plaintiff appealed.
The judgment appealed from is dated 4 February 1971. The record on appeal was docketed in this Court on 13 May 1971, which was more than 90 days after the date of the judgment appealed from. In this record there is no order extending the time for docketing the record on appeal. For failure of appellant to docket the record on appeal within the time allowed by the rules of this Court, this appeal is dismissed. Rule 5, Rules of Practice in the Court of Appeals. Williford v. Williford, 10 N.C. App. 541, 179 S.E.2d 118; Umphlett v. Bush, 7 N.C. App. 72, 171 S.E.2d 80; Smith v. Starnes, 1 N.C. App. 192, 160 S.E.2d 547.
Nevertheless, we have carefully reviewed the record and find no error in the judgment directing verdict against the plaintiff. Plaintiff's own evidence disclosed that he stepped out from a lighted kitchen onto an unfamiliar back porch in the dark without turning on the porch light and without even looking for the switch, which was conveniently located and readily available to him. One may not thus heedlessly disregard the commonest precautions for his own safety. See Annotation, 163 A.L.R. 587.
Appeal dismissed.
Judges BRITT and MORRIS concur.