Bixby v. Thurber

• Citation: 118 A. 99
• Decision Date: 06 June 1922
• Docket Number: No. 1811.,1811.
• Parties: BIXBY v. THURBER et al.
• Court: Supreme Court of New Hampshire

118 A. 99

BIXBY

v. THURBER et al.

No. 1811.

Supreme Court of New Hampshire. Hillsborough.

June 6, 1922.

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

Action by Minnie L. Bixby against George F. Thurber and Frank Hamlin. From verdict for plaintiff, defendants except. Verdict against defendant Hamlin set aside, and judgment on verdict against Thurber.

Case to recover for injuries received by reason of a fall upon an icy sidewalk. Trial by jury, and verdict for the plaintiff against both defendants.

Thurber was lessor, and Hamlin lessee, of a building abutting on the street. The roof pitched toward the street, and the eaves gutters were out of repair, so that when it rained, or when snow melted upon the roof, water was discharged upon the sidewalk at the place of the accident. The ice upon which the plaintiff slipped came from water falling from the defective gutters. The lease was for two years. It contained no covenant to repair, but the lessee covenanted to keep the sidewalk free from snow and ice. Other facts appear in the opinion.

The extent to which the landlord made repairs during the tenancy was a matter in dispute. The tenant offered evidence of repairs made by the landlord. It was ruled that evidence of repairs made before the accident was admissible, but that of repairs after the accident was excluded subject to Hamlin's exception.

The defendants' several motions for a directed verdict were denied subject to exception. There were also exceptions to the charge, which are sufficiently stated in the opinion.

Lucier & Lucier, of Nashua, and Robert W. Upton, of Concord, for plaintiff.

Streeter, Deinond, Woodworth & Sulloway, of Concord, Patrick H. Sullivan, of Manchester, and Jonathan Piper, of Concord, for Thurber.

Leonard F. Hamlin and Henri A. Burque, both of Nashua, Warren, Howe & Wilson, of Manchester, aud Wason & Moran, of Nashua, for Hamlin.

PEASLEE, J. Although there is one verdict against the two defendants, the questions concerning their several liabilities present different legal propositions. Their motions for a directed verdict raise the issue whether there was evidence upon which they or either of them could be found liable.

The landlord, Thurber, rests his claim of nonliability as matter of law chiefly upon the authority of decisions of which those in Maine and Massachusetts are typical. Those decisions are based upon the propositions that as matter of law the building was not a nuisance when leased, that if the landlord was in fault the later fault of the tenant was in law the proximate cause beyond which the law would not go, and that the landlord is excused unless there be proof that he expected the tenant to use the property in this way; that taking a covenant from the tenant to care for the situation is a full discharge of the landlord's duty to the public. It may be remarked at the outset that these propositions involve a question upon which the administration of the law in many other states differs from the local view as to what are questions of law and what relate to fact only.

The conclusion reached in other states that the building was not a nuisance "in itself," although "it was certain to become so at times by the mere working of nature alone," unless steps were taken to prevent it (Clifford v. Mills, 146 Mass. 47, 15 N. E. 84, 4 Am. St. Rep. 279; Lee v. McLaughlin, 86 Me. 410, 30 Atl. 65, 28 L. R. A. 197), has been rested very largely upon assertion. No reason has been assigned for it. Ordinarily the question whether a structure maintained in a way to affect the rights of others is a nuisance is one of fact. Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536; Hall v. Brown, 58 N. H. 93; Nutter v. Pearl, 71 N. H. 247, 51 Atl. 897. ral tendency of the act complained of is to cre.

"If the natuate danger and inflict injury upon person or property, it may properly be found a nuisance as matter of fact; but if the act in its inherent nature is so hazardous as to make the danger extreme and serious injury so probable as to be almost a certainty, it should be held a nuisance as matter of law. While this definition lies on the border of the domain of fact, any definition of a nuisance at law must necessarily lie there, for it is a fact, but so conclusive in legal effect as to be treated as a matter of law. Locality, surroundings, methods, the degree of danger, and the custom of the country are the important factors. * * * Degree implies gradation, and gradation depends on circumstances." Melker v. New York, 190 N. Y. 481. 488, 491, 83 N. E. 565, 567, 568 (16 L. R. A. [N. S.] 621, 13 Ann. Cas. 544).

As suggested in the Massachusetts case quoted above, the structure, plus the mere operation of natural forces, would work Injury unless steps were taken to remedy the situation. Although no further human act was needed to complete the dangerous character of the situation the conclusion was that the structure could not be complained of as a nuisance. This does not appear to be put upon the ground that damage must result before the landowner can be considered a wrongdoer in this respect, but rather that the events had not progressed sufficiently to treat the situation as one where a probable cause for future trouble had been established. The conclusion fails to give due weight to the fact that the structure was designed to remain until the elemental forces would operate upon it, and leaves out of consideration the rule that one may take preventive measures to save himself from future damages likely to be suffered because of a situation already made efficient to cause future injury. "An erection may be a nuisance at a time when it is causing no actual damage." Amoskeag Mfg. Co. v. Goodale, 46 N. H. 53, 56. Damage not being an essential element in the wrong involved in the maintenance of a nuisance, the question how near to doing damage the structure must approach resolves itself very largely into one of fact.

If the fact that "half the householders in Boston are indictable" if such a building is a nuisance establishes the propriety of such structures, as matter of law in Massachusetts (Clifford v. Mills, supra), the cases there rest upon the peculiar customs of that locality (Melker v. New York, supra), and are not applicable in a region where the situation is different. There is in this case no evidence and no claim of a custom in this state to maintain a roof involving such dangers, or of using a leaky gutter to collect the water and pour it upon the public sidewalk. A finding that such a building was a nuisance was warranted. If the fact were so found, the liability of the landlord, as the creator of the nuisance, would not be terminated by a sale of the property. Robertson v. Monroe, 80 N. H. —, 116 Atl. 92, and cases cited.

Other late Massachusetts cases seem to show that the nonliability of the landlord in that jurisdiction is not now rested upon the proposition that the situation had not become a nuisance for if he has not taken from the tenant a covenant or agreement to care for the situation he may still be held liable if the situation is such "as plainly will lead to the creation of a nuisance." Cerchione v. Hunnewell, 215 Mass. 588, 102 N. E. 908, 50 L. R. A. (N. S.) 300.

Reliance is also put upon the cases holding that, even if the landlord could be treated as a wrongdoer, still the failure of the tenant to take preventive measures must be treated as the proximate cause, since "the tenant is the wrongdoer nearest to the injury, and the law looks no further back." Quinn v. Crimmings, 171 Mass. 255. 50 N. E. 624, 42 D. R. A. 101, 68 Am. St. Rep. 420; Cerchione v. Hunnewell, supra.

Here again, as in the matter of the existence of a nuisance, the difference in view as to what is a question of fact renders the Massachusetts authorities inapplicable. The rule that the question of proximate cause is ordinarily for the jury has here been consistently followed. The application of the Massachusetts cases just referred to would not only be contrary to the local law as to proximate cause in general, but also in conflict with the recently reaffirmed rule as to continuing liability for a nuisance. Robertson v. Monroe, supra, and cases cited.

Upon the first transfer of Robertson v. Monroe, 79 N. H. 336, 109 Atl. 495, the rule as to proximate cause now urged was relied upon by the defendants. It was claimed by those who had created a highway nuisance that another person thereafter negligently failed to care for the situation, and that therefore they were not liable.

"It is suggested the adjoining landowner was in fault in not closing or obliterating the driveway or in neglecting to warn the plaintiff. Assuming this to be so, his negligence would not prevent a recovery against others whose negligence was cause for the injury." 79 N. H. 343, 109 Atl. 499.

When the later negligence is not a cause for the accident in a positive way, but consists merely in a failure to take...