Davis v. Wade Motor Sales
| Decision Date | 06 December 1955 |
| Parties | Ralph DAVIS v. WADE MOTOR SALES, Inc. |
| Court | New Hampshire Supreme Court |
Walter H. Gentsch, East Jaffrey, and William D. Tribble, Manchester, for plaintiff.
Bell & Bell, Keene, Ernest L. Bell, III, Keene, for defendant.
There was sufficient evidence that the alignment pit maintained without guard chains constituted an unreasonable risk to persons lawfully on the premises. Defendant's manager, who is also its president and treasurer, testified that guard chains are a safety measure for preventing persons from getting injured in the pit; that they are a customary thing in all garages and that he had instructed his employees to keep the chains up at all times.
The manager testified that he was on the premises about fourteen hours a day. Plaintiff's brother, an employee of defendant for about eight months before the accident, testified that he never saw the chains being used to guard the pit. It could therefore be found that defendant knew that the pit was unguarded and that it constituted an unreasonable risk of injury to persons who might be expected to enter the premises. Smith v. Benson's Wild Animal Farm, 99 N.H. 243, 109 A.2d 39.
Having this knowledge defendant's duty to warn the plaintiff was the same whether he was a gratuitous licensee as contended by defendant or a business invitee as plaintiff maintains. Ward v. Avery, 113 Conn. 394, 155 A. 502; Restatement, Torts, § 343, comment a. It was under duty to give him information as to known existing dangerous conditions which he was not likely to discover. Nickerson v. Laconia Hospital Association, 96 N.H. 482, 79 A.2d 5; Mitchell v. Legarsky, 95 N.H. 214, 60 A.2d 136.
There was evidence that plaintiff had been in the repair department of the garage while defendant's manager, Wade was there. No restrictions as to the use of any part of the premises were imposed on the plaintiff or any other customer by means of signs or otherwise except as to the stockroom. On previous occasions customers had used that part of the garage in the vicinity of the washstand and of the wheel alignment pit. In Wade's presence customers had entered the repair department through the showroom and from either side of the garage.
There was a large showcase displaying automobile accessories in one part of the repair shop. There were at least four lights on therein at the time plaintiff arrived there that night. He was requested by his brother, defendant's employee whose duty it was to close up the garage that evening, to put out the light near the vulcanizing machine. Surely 'On this record it cannot be said as a matter of law that the plaintiff was a tespasser'. Rau v. First National Stores, 97 N.H. 490, 496, 92 A.2d 921, 924; see Sandwell v. Elliott Hospital, 92 N.H. 41, 24 A.2d 273; Packard v. Kennedy, 4 Ill.App.2d 177, 124 N.E.2d 55, 61. He came as a business invitee to purchase gasoline and other services. Whether at the time of his accident his status had changed to that of a gratuitous licensee it is not necessary to decide because with defendant's knowledge of the dangerous condition which existed it owed him the duty as licensee or invitee to warn him of dangerous conditions which he was not likely to discover. Restatement, Torts, supra. See Nickerson v. Laconia Hospital Association, supra; Rau v. First National Stores, supra; Annotation 23 A.L.R.2d 1140.
Although the dimensions and characteristics of the chains used as a guard around such pits are not detailed in the record the jurors had a view of a similar pit and chain. Connors v. Turgeon, 96 N.H. 479, 481, 78 A.2d 925. They had an opportunity to observe, and there was also evidence as to the general surroundings of the pit in defendant's garage. A finding that defendant had reason to believe that plaintiff would not discover the condition or realize the risk of the unguarded alignment pit was sustainable on the evidence.
Nor are we of the opinion that plaintiff was guilty of contributory negligence as a matter of law. Whenever he had been in the vicinity of the pit previously the guard...
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