Allen v. State

• Decision Date: 30 December 1969
• Docket Number: No. 5815,5815
• Citation: 260 A.2d 454,110 N.H. 42
• Parties: Bertha ALLEN et al. v. STATE.
• Court: New Hampshire Supreme Court

Page 454

260 A.2d 454

110 N.H. 42

Bertha ALLEN et al. v. STATE.

No. 5815.

Supreme Court of New Hampshire.

Argued Jan. 7, 1969.

Decided Dec. 30, 1969.

Rehearing Denied Dec. 30, 1969.

Burns, Bryant, Hinchey & Nadeau, and Robert P. Shea, Dover, for plaintiffs.

Devine, Millimet, McDonough, Stahl & Branch, Manchester (Shane Devine, Manchester, orally), for defendant.

GRIMES, Justice.

These are actions at law to recover for personal injuries sustained as a result of an accident on August 7, 1962, while the plaintiffs were in the process of getting on a double chair ski lift of the defendant's for the purpose of descending to the base station. There was a trial by jury resulting in verdicts for the defendant in each action. The exceptions of the plaintiffs were transferred by Bownes, J.

The defendant owns and operates, among other facilities, a double chair lift at Sunapee State Park in Sunapee. The lift in question, when first installed in 1948, was a single chair lift. In order to increase its capacity, it was converted in 1962 to a double chair lift by the company which originally constructed the lift. When converted, single chairs were replaced by chairs capable of holding one passenger on each side of a steel pipe which at the top is attached to a cable and which at the bottom is attached to the so-called chair. The cable moves continuously when the lift is in operation and carries the chairs along with it up or down the mountain. The chairs, therefore, follow one another over the loading platform at the same speed. Each chair (one on each side of the center pipe) is about 17 inches wide and has an iron pipe armrest on the outside.

Each chair is equipped with a safety bar consisting of a half-inch iron pipe, which is hinged near the center pipe and when open protrudes straight forward. The bottom of the safety bar is attached to a foot rest which also projects forward when the safety bar is open. When a passenger is seated, he pulls the safety bar over in front of him which in turn pulls the footrest under his feet. During the process of loading, the safety bars on each side are supposed to point directly forward so that they are in close proximity to each other.

The lift is used by skiers during the sking season and by sightseers during the rest of the year. The proper way for a passenger to get on the lift is to stand in footprints painted on the platform, look over his inside shoulder, wait for the chair which is steadied and guided by an attendant, and sit in it as it comes beneath him. He then pulls the safety bar (and footrest) in front of him and rides up or down the mountain.

Both plaintiffs with Mr. Grant, the brother of Mrs. McGee, had come to the park from Massachusetts for the day. Mrs. McGee was 62 years old and her daughter, Mrs. Allen, a widow, was 44 years old. After walking around at the base and having a light lunch, they decided to go up on the lift. They talked with an attendant who, on inquiry, said it was safe, purchased tickets, and safely ascended to the top. Neither of them had been on such a lift before.

After spending some time at the top, they decided to descend. Mr. Grant went first. After he was safely aboard, the two women stood in the painted footprints and waited for their chairs. There were attendants at the top, but there is a dispute as to what the attendants did. Mrs. Allen stood on the right as they faced down the mountain and both women were looking over their inside shoulder as they waited for the chairs. Before the chairs arrived, Mrs. Allen turned and looked over her right, or outside, shoulder, and an attendant shouted 'turn the other way.' The safety bar on her side caught Mrs. Allen's raincoat and she was carried forward and caused to fall on the wooden platform. Mrs. McGee claims she was hit in the back of the legs by her chair, was carried forward, and fell off the end of the wooden platform before the lift came to a stop as a result of the safety bottons being activated by an attendant. She claims she never was seated on the chair.

The plaintiffs claim that when they sought to descend the mountain no one was assisting them or guiding the chairs. They claim that the safety bars were not fully open, thus causing a reduced space in which to get seated. It was the duty of the attendant to close any undue gap between the bars if any existed before the chairs reached the passengers.

An attendant testified that he was guiding the chair, that there were about two or three inches between the safety bars, which according to him was not unusual, that Mrs. Allen turned to look over her outside shoulder and that he told her to look the other way. He said that Mrs. McGee had been seated in the chair but attempted to get off on seeing what happened to Mrs. Allen. He said he ran to the safety button which stopped the lift. It is not disputed that the lift will coast some distance after the power is shut off. The chair carried Mrs. McGee off the end of the platform where she dropped some ten feet to the ground.

The plaintiffs claim that the Trial Court failed to fully and correctly instruct the jury and erred in not granting certain of their requests for instructions. The Court instructed the jury on negligence and causation with special emphasis on the 'circumstances' and told them that the defendant was acting as a common carrier and was to be held to a high standard of care, that it owed the duty of care and caution to protect passengers consistent with the practical operation of the lift, that it had the duty to recognize the great potential dangers and should have taken all practical precautions to guard the passengers against them but was not an insurer and did not have the duty to make the lift absolutely safe, and had a right to assume that passengers would use the lift in a reasonable and careful manner. The Court then further instructed the jury on the plaintiffs' various specific claims of negligence without repeating his previous instructions on the standard of care owed by the defendant as a common carrier.

On the plaintiffs' claim of negligence for lack of instructions, which is the subject of the dissent, the Court told the jury it was 'up to you to determine whether or not they were so instructed, and furthermore, whether the failure to so instruct was negligent on the part of the defendant through its employees.

'Now you must, of course, take all of the circumstances surrounding this accident into consideration. There has been testimony here about signs at the bottom of the chair lift and at the top. You are entitled to take signs into consideration, whether or not you find that there were signs and if so what effect those signs should have had on the conduct of the plaintiffs themselves; and their apparent age and what bearing that should have on the conduct of the chair lift attendants.'

Whether instructions are given on the duty of the defendant as to each of the plaintiff's claims is a matter which is best left to the discretion of the Trial Judge. If the jury has been fully and clearly instructed on negligence and causation and the claims of the parties are fairly set forth, it is within the discretion of the Trial Judge whether to instruct the jury as to the specific application of these rules of law to the claims of the parties and the particular evidence in the case. Paradis v. Greenberg, 97 N.H. 173, 175, 176, 83 A.2d 606; Colby v. Lee, 83 N.H. 303, 307, 142 A. 115, 688.

It is our opinion that read as a whole the charge made it clear that the jury was to apply the standard of care previously defined as applicable to a common carrier in considering each claim of fault made against the defendant.

The plaintiffs claim that the Court should not have left it to the jury to determine whether a failure to instruct the plaintiffs constituted negligence. It is true that, as the plaintiffs claim, it has been held that a common carrier has a duty to instruct when there are special circumstances, but it has also been said that in the absence of 'apparent necessity,' assistance is not required. Beaudet v. Boston & Maine Railroad, 101 N.H. 4, 5, 131 A.2d 65. We think it would have been error for the Judge to have instructed the jury that assistance and instructions were as a matter of law required as requested by the plaintiffs. The plaintiffs had safely ascended the mountain on the lift and gave no indication to the attendants at the top that they were not acquainted with the use of the lift or needed instructions. They asked no questions of any one of the three attendants as to its use before attempting to descend, although there was evidence that signs in the area admonished those who were unfamiliar with its use to inquire of the attendant. The jury was entitled to find that the attendants were not negligent in failing to instruct the plaintiffs.

Under these circumstances, we hold also that it was not error for the Court to instruct the jury that the defendant had a right to assume that 'passengers using the chair lift would do so in a reasonable and careful manner.' As a general rule, persons are not required to anticipate careless conduct...