Cook v. 177 Granite St. Inc.

• Decision Date: 01 March 1949
• Docket Number: No. 3783.,3783.
• Parties: COOK v. 177 GRANITE ST., Inc.
• Court: New Hampshire Supreme Court

64 A.2d 327

COOK

v.177 GRANITE ST., Inc.

No. 3783.

Supreme Court of New Hampshire.

March 1, 1949.

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

Action on the case by Almeda Cook against 177 Granite Street, Inc., for negligence in maintaining an archway under defendant's building in an icy condition, as a result of which the plaintiff slipped and suffered injuries. Transferred upon defendant's exceptions to the denial of defendant's motions for a nonsuit and for a directed verdict, and for a judgment for defendant notwithstanding verdict for plaintiff.

Judgment for defendant.

Case, for negligence in maintaining an archway or tunnel under defendant's building in an icy condition as a result of which the plaintiff slipped and suffered personal injuries. Trial by jury, after a view, with a verdict for the plaintiff. Transferred by Leahy, J., upon defendant's exceptions to the denial of its motions for a nonsuit and for a directed verdict, and for a judgment for the defendant notwithstanding the verdict.

The plaintiff on February 13, 1946 was crossing the premises of the defendant while on her way to work at the factory of the B & C Shoe Company. The defendant's building was located on the east side of Commercial Street and the B & C Shoe Company, employer of the plaintiff, was located on the west side of Commercial Street. The plaintiff slipped on ice inside the archway under the defendant's building. The archway was opposite a right of way and entrance which was conveyed to the defendant in these words: ‘* * * the use in common with others of the right of way over the team bridge opposite West Central Street; the grantee to contribute its fair share of the expense of maintaining and repairing the highway bridge according to its use thereof.’ The conveyance to the defendant was also subject to three easements in favor of (1) an electric utility (2) the grantor to maintain and repair ‘its water, steam, sewer, electric, telephone and air lines now located in said premises' and (3) the City of Manchester to maintain and repair city water mains. A plan attached to the deed showed dotted lines extending the entrance through the defendant's building.

There was no evidence that the use of the entrance and archway by the plaintiff and several hundred other workers daily had ripened into a prescriptive way or had been dedicated as a public way. The court ruled that the plaintiff was not an invitee of the defendant but that she was a member of a class of people who could rightfully use the entrance and archway in going to and from various plants located within the area of the Amoskeag Mill yard of the grantor, Amoskeag Industries, Inc.

Other facts appear in the opinion.

Maurice A. Broderick, of Manchester, and James E. Simon, of Dover, for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Wm. J. Starr, Jr., of Manchester, orally), for defendant.

KENISON, Justice.

If the plaintiff was an invitee, the defendant was under a duty to use due care to have the place safe. Frear v. Manchester Traction, Light & Power Company, 83 N.H. 64, 68, 139 A. 86, 61 A.L.R. 1280. If the plaintiff was a gratuitous licensee, the defendant ‘owed [her] only a limited duty of care.’ Mitchell v. Legarsky, 95 N.H. 214, 216, 60 A.2d 136, 137. ‘Use of the premises for one's own personal benefit is what makes the user a licensee; while if the premises are used for the common interest and mutual advantage of both the user and owner, by invitation...