Berthiaume v. Kessler

• Court: New Hampshire Supreme Court
• Writing for the Court: BRANCH, Justice.
• Citation: Berthiaume v. Kessler, 86 N.H. 305, 167 A. 273 (N.H. 1933)
• Decision Date: 30 June 1933
• Parties: BERTHIAUME v. KESSLER et al. (two cases).

167 A. 273

BERTHIAUME

v. KESSLER et al. (two cases).

Supreme Court of New Hampshire. Hillsborough.

June 30, 1933.

Transferred from Superior Court, Hillsborough County; Woodbury, Judge.

Actions by Arthur Berthiaume, and by liita Berthiaume, by her next friend Arthur Berthiaume, against Samuel Kessler and another, in which verdicts for plaintiffs were rendered. Transferred on defendants' exceptions to the denial of their motions for directed verdicts.

Judgments on the verdicts.

Two actions of case for negligence tried together by jury with verdicts for both plaintiffs. In the second action the plaintiff, Rita, seeks to recover damages for personal injuries sustained by her as the result of a fall from an outside stairway upon the premises of the defendants. In the first action her father seeks to recover for the expenses incurred by him as the result of her injuries. Transferred by Woodbury, J., upon the defendants' exceptions to the denial of their motions for directed verdicts.

No testimony was introduced by the defendants, but the evidence of the plaintiffs tended to prove the following facts: The plaintiff, Arthur, was, upon the date of the accident, November 28, 1930, a tenant of the defendants, occupying with his family a tenement on the second floor of a three-story wooden block in Nashua in which there were three other tenants. From a yard in the rear of the building rose an outside stairway which gave access to the tenements on the second and third floors and which was used in common by all tenants. This stairway led from the ground to a piazza upon the level of the second floor from which there was an entrance to the hallway separating the two tenements on that floor. On the outer side of this stairway was a railing consisting of a single galvanized iron pipe carried upon throe Upright supports and attached at its upper end to a post of the piazza. The height of the railing above the stair treads was twenty-nine inches. The piazza roof was so constructed that drippings therefrom fell upon the two top steps of the stairway leading to the ground. There had been no change in the construction of the railing or the piazza roof since the tenancy commenced.

Upon the day of the accident there was an accumulation of ice caused by drippings from the eaves of the piazza roof on the two top stairs, and the plaintiff, Rita, then a child six years of age, while ascending the stairway, slipped upon this ice, slid under the iron railing, and fell to the ground below.

Albert Terrien, of Nashua, for plaintiffs.

Sewall & Waldron and Oscar Neukom, all of Portsmouth, for defendants.

BRANCH, Justice.

The defendants contend that a landlord owes to his tenants no duty of protection against dangers inherent in the "type of construction" of...