Blackman v. Rowe

• Decision Date: 04 April 1950
• Citation: 96 N.H. 207,72 A.2d 460
• Parties: BLACKMAN v. ROWE.
• Court: New Hampshire Supreme Court

Page 460

72 A.2d 460

96 N.H. 207

BLACKMAN v. ROWE.

Supreme Court of New Hampshire.

April 4, 1950.

H. Thornton Lorimer and Francis E. Perkins, Concord, for plaintiff.

George P. Cofran, Concord, and Thomas E. Flynn, Jr., Portsmouth, for defendant.

LAMPRON, Justice.

The nature of the relationship existing between the parties determines the existence and extent of the duty of care owed the plaintiff by the defendant. Sandwell v. Elliott Hospital, 92 N.H. 41, 42, 24 A.2d 273. The defendant, by means of newspaper advertisements and flyers, had invited the public to attend this auction of which he had full charge. In response thereto, the plaintiff, who was interested in purchasing some of the merchandise to be offered for sale, was in attendance. For the purposes of the auction the defendant assumed the position of owner or occupier of the premises in question. Frear v. Manchester Traction, Light & Power Company, 83 N.H. 64, 139 A. 86, 61 A.L.R. 1280. The plaintiff was his business invitee. Sandwell v. Elliott Hospital, supra, 92 N.H. 43, 24 A.2d 273; Roy v. Amoskeag Fabrics, Inc., 93 N.H. 324, 325, 41 A.2d 607. Consequently the defendant owed her the duty to use reasonable care to protect her against dangers reasonably to be apprehended. Holmes v. Clear Weave Hosiery Stores, 95 N.H. 478, 480, 66 A.2d 702; Lynch v. L. B. Sprague, Inc., 95 N.H. 485, 487, 66 A.2d 697; Restatement, Torts, §§ 343, 348. And this duty extended to all parts of the premises which the defendant knew or should have known his invitees are accustomed to occupy. Ghilain v. Couture, 86 N.H. 117, 119, 164 A. 213; Roy v. Amoskeag Fabrics, Inc., supra.

The jury could well find on the evidence that the ordinary person in defendant's position would have realized the danger that some one attending the auction might be injured by the removal from the porch, of an object, such as this cabinet, in the manner undertaken by these men, and that the likelihood of this happening was such that the ordinary man in his position would have taken measures to guard against its happening. Bouley v. Tilo Roofing Company, 90 N.H. 402, 10 A. 2d 219; Sayfie v. Gordon, 95 N.H. 182, 183, 59 A.2d 483. He could have located his platform differently, warned the patrons, or directed the removal so that it could have been effected in safety. It was not necessary that the defendant anticipate that the accident would happen precisely as it did. Bouley v. Tilo Roofing Company, supra, 90 N.H. 403, 10 A.2d 219.

The evidence also justified a further finding by the jury that but for defendant's failure to use due care in this respect the plaintiff would not have been injured. Dervin v. Amoskeag Mfg. Company, 81 N.H. 108, 111, 122 A. 353; Perreault v. Allen Oil Company, 87 N.H. 306, 309, 179 A. 365. Granting that negligence on the part of the two brothers who were carrying out the cabinet contributed to cause her injuries, the jury could properly find on the evidence that defendant's negligence was also causal. It was a question of fact to be determined by them. Ela v. Postal Tel. Cable Co., 71 N.H. 1, 3, 51 A. 281; Derosier v. New England Telephone & Telegraph Company, 81 N.H. 451, 462, 130 A. 145; Perreault v. Allen Oil Company, supra.

When struck, the plaintiff was sitting in front of the porch about 5 1/2 feet south of the southerly end of the steps leading onto the piazza, with her back toward the porch, facing the auctioneer at a forty-five degree angle. While the cabinet was being sold and during its removal, the plaintiff was engaged in conversation with a lady next to her. She heard some one say, 'My God,--the woman will be killed,' she raised her head and heard something crack down between her...