Ayers v. Gordon.
| Decision Date | 05 February 1946 |
| Citation | 45 A.2d 656 |
| Parties | AYERS v. GORDON. |
| Court | New Hampshire Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Hillsborough County; Goodnow, Judge.
Action of case by Melvina L. Ayers against Bessie W. Gordon to recover damages for personal injuries allegedly sustained by the plaintiff while removing clothes from clothes lines on the roof of defendant's building. Verdict for the plaintiff, and the defendant brings exceptions.
Judgment on the verdict.
Case to recover damages for personal injuries sustained by the plaintiff June 25, 1943 while she was in the act of removing clothes from clothes lines on the roof of defendant's three-story building on High Street, Nashua. The building was occupied, among others, by the plaintiff and another tenant who lived on the third floor. Clothes lines and a platform were furnished them for their use on the roof of the building. The claim is that plaintiff, while removing clothes, went through what is described as a defective wooden platform under the clothes lines.
Trial by jury. Verdict for the plaintiff.
Subject to defendant's exceptions, her motions for nonsuit and directed verdict were denied; likewise of her motions to set the verdict aside as against the law, the evidence, the weight of the law and evidence; and on the further grounds that the jury fell into a plain mistake, was moved by passion and prejudice; that the verdict postulates a physical impossibility and cannot be sustained, and that it is excessive and unwarranted by the evidence.
A bill of exceptions was allowed by Goodnow, J.
Robert E. Earley, of Nashua, for plaintiff.
Karl E. Dowd, of Nashua, for defendant.
There can be no doubt that the platform and clothes lines were furnished the plaintiff and another tenant for the common use of both. The evidence further discloses that the defendant retained control of the roof, platform and clothes lines. In fact it was conceded during the trial that defendant retained control of the premises. This imposed upon her ‘a duty to use ordinary care to keep them in reasonably safe condition for any use which ‘might be found to be contemplated.’' Papakalos v. Shaka, 91 N.H. 265, 267, 18 A.2d 377, 378, and cases cited.
Defendant's own carpenter testified that the platform, immediately after the accident, was ‘in very poor condition’, that it was constructed of ‘poor material’ and that ‘the floor joists were too far apart.’ Where they should have been 16 to 18 inches apart, a lot of them were three feet or more apart. Two boards were found broken. This is sufficient evidence to sustain plaintiff's claim of defective condition, and that she was injured by reason thereof.
Defendant stated as grounds relied upon for her motions for nonsuit and directed verdict: ‘as a matter of law plaintiff knew of the condition of the premises and was contributorily negligent’; ‘either the premises were safe or they were not readily to be found to be unsafe so as to notify the landlord, or they were unsafe and the plaintiff knew it, and in using them was negligent.’
The defense of contributory negligence raises a question of fact for the jury. Halley v. Brown, 92 N.H. 1, 31, 24 A.2d 267; LaPerle v. Swanson, 92 N.H. 5, 6, 24 A.2d 269; Papakalos v. Shaka, supra, 91 N.H. at page 269, 18 A.2d 377. Plaintiff testified she knew part of the platform was defective, but that she did not use that part. The part she used appeared safe; there was nothing to indicate it...
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Black v. Fiandaca
...or reasonable care to keep the premises in a reasonably safe condition for any use which might be found to be contemplated. Ayers v. Gordon, 94 N.H. 30, 45 A.2d 656; Papakalos v. Shaka, 91 N.H. 265, 18 A.2d 377; Menard v. Cashman, 94 N.H. 428, 430, 55 A.2d 156; Monier v. Belzil, 97 N.H. 176......
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Barrett v. Foster Grant Co., Civ. A. No. 2944.
...of assumption of the risk applies only to common law actions by an employee against his master. Butler v. King, supra; Ayers v. Gordon, 94 N.H. 30, 45 A.2d 656 (1946); Papakalos v. Shaka, 91 N.H. 265, 18 A.2d 377 (1941); and Williamson v. Derry Electric Co., 89 N.H. 216, 196 A. 265 (1938). ......
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Brosor v. Sullivan
...in this state that the doctrine of assumption of risk has no application since this is not a master and servant tort action. Ayers v. Gordon, 94 N.H. 30, 45 A.2d 656; Klineintie v. Nashua Mfg. Company, 74 N.H. 276, 67 A. 573. While a plaintiff is contributorily negligent if he encounters a ......
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Butler v. King
...upon that holding.' Papakalos v. Shaka, 91 N.H. 265, 268, 18 A.2d 377, 379. Subsequent cases have followed the same rule. Ayers v. Gordon, 94 N.H. 30, 32, 45 A.2d 656. It follows that the defendants' motion for a directed verdict was properly denied. See Martel v. Wallace, 83 N.H. 276, 141 ......