Bouley v. Tilo Roofing Co., Inc.
| Decision Date | 05 December 1939 |
| Docket Number | No. 3116.,3116. |
| Citation | 10 A.2d 219 |
| Parties | BOULEY v. TILO ROOFING CO., Inc. (two cases). |
| Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Hillsborough County; James, Judge.
Actions of case for negligence by Leo Bouley, a minor, by his father and next friend, Henry J. Bouley, to recover damages for personal injuries, and by Henry J. Bouley to recover expenses incurred because of such injuries against the Tilo Roofing Company, Incorporated. Defendant's motions for nonsuits and directed verdicts were denied, and it brings exceptions.
Exceptions overruled.
Actions of case, for negligence; the first, to recover for personal injuries sustained by Leo Bouley, a child three and a half years old; the other, brought by the child's father, to recover for expenses incurred by reason of the child's injury. Trial by jury, resulting in a disagreement. Transferred by James, J., on exceptions to the denial of the defendant's motions for nonsuits and directed verdicts. The facts are stated in the opinion.
Thomas J. Leonard and John R. Spring, both of Nashua, for plaintiffs.
Alvin A. Lucier, of Nashua, for defendant.
The plaintiffs' evidence tended to prove the following facts: In September, 1935, Henry J. Bouley and his wife employed the defendant to cover the outer walls of their house in Nashua with composition shingles. These shingles were nailed to laths, which in turn were fastened directly to the clapboards. In order to nail the shingles flat, it was necessary to remove an ornamental molding, and in the course of this work pieces of the molding, with nails exposed, were thrown to the ground.
Just before noon on the day of the accident, Mrs. Bouley called her children to dinner. They were five in number and were then playing in the yard. The plaintiff, Leo, instead of coming directly to his mother when she called, ran to the side of the house where the men were at work and there fell, puncturing his eye on a nail which protruded from a strip of the discarded molding.
The workmen knew that the children were playing about the premises. At the beginning of their work Mrs. Bouley had asked if the children would bother them and their answer had been "No, they are all right."
Defendant's counsel argues that since it is the "common custom" for contractors to use the owner's premises for "the depositing of materials, old and new, while the work is in progress," the defendant could not be held liable for so doing, or for failing to anticipate and guard against the "likelihood that children might fall upon material" thus deposited.
This contention is without merit. While the fact that a defendant has acted as others engaged in the same business customarily act "is...
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