Clark v. Sharpe

• Decision Date: 28 June 1912
• Citation: 76 N.H. 446,83 A. 1090
• Parties: CLARK v. SHARPE.
• Court: New Hampshire Supreme Court

83 A. 1090

76 N.H. 446

CLARK

v. SHARPE.

Supreme Court of New Hampshire. Strafford.

June 28, 1912.

Transferred from Superior Court, Strafford County; Plummer, Judge.

Action by William J. Clark, administrator, against Annie J. Sharpe. Verdict for plaintiff, and cause transferred from Superior Court, Strafford County. Defendant's exception to denial of motion for a directed verdict sustained, and verdict for defendant.

June 16, 1910, the plaintiff's intestate, who was his infant daughter, was drowned in a privy vault upon the premises occupied by the plaintiff as tenant of the defendant (a woman 76 years old), which he hired of her May 1, 1910. At the conclusion of the evidence the defendant moved that a verdict be directed in her favor, on the ground that there was no evidence that she knew of the dangerous condition of the vault cover claimed to have caused the injury. The motion was denied, subject to exception.

Pierce & Galloway, of Dover, for plaintiff.

Kivel & Hughes and Robert Doe, all of Dover, for defendant.

PARSONS, C. J. The premises were in the possession of the plaintiff as tenant of the defendant. The right of his child, occupying by his permission, to recover of the owner for injuries received through defects in the premises, is no greater than his. In the ordinary contract of letting there is no warranty that the premises are reasonably safe or suitable for the uses intended; and in the absence of any warranty, or of deceit or fraud on the part of the landlord, the lessee takes the risk of the condition of the premises and cannot make the landlord responsible for injuries sustained by him during his occupancy by reason of defects therein. Towne v. Thompson, 68 N. H. 317, 44 Atl. 492, 46 L. R. A. 748. The landlord is not liable unless there is such a concealment of defects not open to ordinary observation, which cause the injury, as to amount to fraud or deceit. Cate v. Blodgett, 70 N. H. 316, 48 Atl. 281; Dustin v. Curtis, 74 N. H. 266, 268, 67 Atl. 220, 11 L. R. A. (N. S.) 504, 13 Ann. Cas. 169.

To go to the jury, the plaintiff was required to offer evidence that the injury was due to a secret defect in the premises, concealed from ordinary observation, known to the defendant, and not disclosed to and unknown by the plaintiff. Cowen v. Sutherland, 145 Mass. 363, 14 N. E. 117, 1 Am. St. Rep. 469. The sole question presented by the defendant's motion is whether there was evidence from which it could be found that she knew of the defect which, caused the injury. The child lost her life, it could be found, because the cover of the vault tilted downward from lack of sufficient support when the child went upon it, thereby allowing the child to fall into the vault below. The question therefore is: Did the defendant know of this trap?

There was evidence that the condition was caused by the rusting away of the hinges and the decay of a support intended to hold the cover at the rear. The plaintiff's evidence was that the condition was not discoverable by ordinary observation. The trap was not discovered until an attempt was made to lift the cover, when it tilted down cornerwise, returning to its ordinary position when released. There was no evidence that the defendant had attempted to raise the...