Butler v. King

• Decision Date: 01 July 1954
• Parties: BUTLER v. KING et al.
• Court: New Hampshire Supreme Court

Page 385

106 A.2d 385

99 N.H. 150

BUTLER v. KING et al.

Supreme Court of New Hampshire.

Argued June 3, 1954.

Decided July 1, 1954.

SYLLABUS BY THE COURT

In an action by an employee of a subcontractor, against the contractor undertaking repairs to a building, for injuries sustained when a railing gave way as the alleged result of the contractor's negligence, a finding was not required as a matter of law that such injuries were received as a result of plaintiff's encountering a known danger to which he paid no heed.

In such action the assumption of the risk doctrine had no application.

Although the charge to the jury was phrased in general and abstract terms and did not place special emphasis upon various claims it was held to have fully and adequately instructed the jury.

The Workmen's Compensation Law (Laws 1947, c. 266, s. 12, as amended) permitting suits against third persons "other than the employer" enables the maintenance of a common-law action by an employee of a sub-contractor against the general contractor for the latter's negligence, although such employee received workmen's compensation benefits.

'Action, on the case for negligence, arising from an accident which occurred to the plaintiff on April 4, 1949, at Hampton, in the County of Rockingham, and State of New Hampshire, on the premises of what is known as the 'Tides Hotel.' At that time the defendants were general contractors engaged in repairing the 'Tides Hotel,' and the plaintiff was the employee of a sub-contractor, namely, on Wilfred Bernard, who had made a contract with the defendants to do certain painting on the said premises. The plaintiff was in jured as the result of coming in contact with the railing on the porch of the said 'Tides Hotel,' which fell to the ground. The plaintiff alleged that the said railing was in a dangerous condition, due to the negligence of the said defendants.

'Trial by jury, with a view by jury. A verdict was returned for the plaintiff. At the close of plaintiff's evidence, the defendants seasonably moved for a nonsuit, which was denied, and the defendants duly excepted. At the close of all the testimony, the defendants moved for a directed verdict, which was denied, and the defendants duly excepted. After the verdict, the defendants seasonably moved to set the verdict aside, and after a hearing, the motion of the defendants was denied, and the defendants seasonably excepted. The defendants also moved to dismiss the action on the ground that the said defendants were not third parties within the provisions of Chapter 216, Revised Laws of New Hampshire 1942, as amended. During the trial of the case certain exceptions were taken to the admission and exclusion of evidence, to the arguments of plaintiff's counsel, to the alleged failure of the court to instruct the jury as requested by the defendants, and to certain portions of the charge as given.' The reserved case quoted above was transferred by Griffith, J.

In the afternoon of the first day that the plaintiff was working on the premises he went to the middle of the south railing on the porch to look around the building to see if the carpenters were there. The plaintiff and another worker were painting windows after they had been installed by the carpenters. The plaintiff looked at the level railing directly in front of him, did not notice whether it was secured to the building and an iron column at the other end but did notice that it 'seemed to fit in there fairly tight between the iron column and the building.' As he put his hand on the railing to look around the building the railing gave way and he fell to the ground landing on his feet and then fell over in a lying position on top of the railing suffering a broken leg. The 'whole thing happened with one motion.' The plaintiff testified that he did not put much weight on the railing and that 'it looked all right.'

In renovating the hotel the defendants removed the wooden posts on the front of the porch, detached the railing at the easterly end and substituted iron lally columns. The defendants' evidence indicated that there had been no disturbance of the railing at the westerly and building end and that it was blocked and braced at the lally column end. The plaintiff's evidence indicated that neither the block nor the brace were seen immediately after the accident, and that there were no nails in the finish board on the westerly end of the railing and no nails in the corner board of the hotel itself. Other facts appear in the opinion.

Burns, Calderwood & Bryant, Dover, Donald R. Bryant, Dover, orally, for plaintiff.

Devine & Millimet, Manchester, Charles F. Hartnett, Dover, Jos. A. Millimet, Manchester orally, for defendants.

KENISON, Chief Justice.

The defendants had a duty to maintain reasonable conditions of safety and the plaintiff was entitled to place some reliance on the performance of that duty. Cartier v. F. M. Hoyt Shoe Corporation, 92 N.H. 263, 29 A.2d 423; Holmes v. Clear Weave Hosiery Stores, 95 N.H. 478, 66 A.2d 702; Monier v. Belzil, 97 N.H. 176, 83 A.2d 923. However the plaintiff is precluded from recovering damages if he received his injuries as a result of encountering a known danger to which he paid no heed. Paine v. Y. M. C. A., 91 N.H. 78, 79, 13 A.2d 820. In that case it was held that a basketball player, injured when he fell against bleachers close to the playing court, could not recover. In Robinson v. Boston & M. Railroad, 85 N.H. 474, 160 A. 473, a plaintiff was barred from recovery when he boarded a moving train after the door was closed and the trap was dropped to cover the space above the steps from the car platform to the door. In Cronin v. Columbian Mfg. Company, 75 N.H. 319, 74 A. 180, 29 L.R.A., N.S., 111, there was judgment for the defendant when the plaintiff allowed his foot to extend over the edge of an elevator platform while the open elevator was in motion. These three cases cited by the defendants are distinguishable from the facts of this case and are not controlling.

This railing was level and stood upright and in the same position it would have been if it had been effectively secured at both ends. The fact that it looked like a normal railing and appeared to fit in tightly between the building and the iron column did not give it the appearance of involving an unreasonable risk to the user. Williamson v. Derry Electric Company, 89 N.H. 216, 218, 196 A. 265. 'On the other hand, the fact that a condition is obvious--i. e., it would be clearly visible to one whose attention is directed to it--does not always remove all unreasonable danger.' James, Tort Liability of Occupiers of Land: Duties owed...