Flynn v. Gordon

• Decision Date: 04 April 1933
• Citation: 165 A. 715
• Parties: FLYNN v. GORDON.
• Court: New Hampshire Supreme Court

165 A. 715

FLYNN

v. GORDON.

Supreme Court of New Hampshire. Hillsborough.

April 4, 1933.

Charge requiring jury to determine whether it was probable that whatever plaintiff stepped on came from box on display either in front of or in entrance of defendant's store, and, if not probable, there was no liability, and, if probable, there was liability, provided plaintiff's own conduct did not contribute to bring about her injuries, was erroneous, because, if presence of string beans on sidewalk was due to fault of defendant, he would be liable, and, unless he was legally responsible for their presence on the sidewalk, he would not be liable, and because some proof of actual or probable agency which placed string beans on sidewalk and that defendant should have anticipated and provided against such an occurrence would be required.

Instruction that, if boxes of beans were located on sidewalk in front of defendant's store, Pub. Laws 1926, e. 89. § 1, providing that any person through whose negligence or carelessness any obstruction is caused on any highway shall be liable to any person injured by reason thereof, was erroneous because the violation of a statute becomes an actionable wrong only when the consequences contemplated by the provision in question have actually resulted from its violation.

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

Action by Esther M. Flynn against Hyman Gordon. Verdict for the plaintiff. Transferred on the defendant's exceptions.

Judgment for the defendant.

Case for personal injuries suffered by the plaintiff as the result of a fall upon the sidewalk in front of defendant's store. Trial by jury with a verdict for the plaintiff. Transferred by Burque, J., upon the defendant's exceptions to the denial of his motions for a nonsuit and a directed verdict and to the charge. The facts are stated in the opinion.

Doyle & Doyle, of Nashua (Paul J. Doyle, of Nashua, orally), for plaintiff.

Lucier & Dowd and O. Neil Tolman, both of Nashua (A. A. Lucier, of Nashua, orally), for defendant.

BRANCH, Justice.

There was evidence from which the following facts might be found:

On July 24, 1930, the plaintiff slipped and fell on the sidewalk in front of the defendant's store in Nashua, and sustained injuries to her right knee, for which a recovery is sought in this action. The cause of her slipping was the presence on the sidewalk of "several" string beans which "were scattered around the entrance." These beans came from "some boxes" which were displayed on the sidewalk in front of the store.

The above facts embody the testimony most favorable to the plaintiff. There was other evidence tending to prove that, after the accident, the plaintiff pointed out upon the sidewalk only a single "old bean" which had been stepped on so often that there was "not an awful lot" left of it; that the only boxes on display outside the store were located in the entrance thereto on the premises of the defendant and not upon the sidewalk. There was no direct evidence that the beans upon which the plaintiff slipped came from the defendant's boxes, or, if so, how they came to be upon the sidewalk at that time.

The case was tried and submitted to the jury upon the theory that the defendant might be held liable for the plaintiff's injury if two facts were established: (1) That boxes of produce were negligently placed either on the sidewalk or in the entrance to the store; and (2) that the plaintiff slipped upon something which came from these boxes. This theory was clearly stated in the charge as follows: "Is it probable that whatever plaintiff stepped on came from a box or from boxes on display either in front of or in the entrance of defendant's store? If not probable, there is no liability; if probable, there is liability, provided plaintiff's own conduct did not contribute to bring about her injuries."

This theory was erroneous, and proof of the facts above stated was insufficient to sustain a verdict for the plaintiff.

The cause in fact of the plaintiff's injuries was the bean or beans upon which she stepped. If their presence upon the sidewalk was due to the fault of the defendant, he would be liable, but, unless he was legally responsible for their presence there, he would not be liable. Fault on the part of the defendant in causing or permitting the beans to be on the sidewalk could not be established by proving, without more, that he negligently placed them somewhere else. If a box of beans had been carelessly spilled in side the store, it would hardly be suggested that the defendant could be charged with liability simply by proving the subsequent presence of a few of them on the sidewalk. Some proof of the actual or probable agency which placed them there and some proof that the defendant should have anticipated and provided against such an occurrence would be required. The situation is not changed because the boxes were placed outside the store. Sullivan v. Creed (1904) 2 I. R. 317, 2 B. R. C. 139.

The defendant cannot be charged with a breach of duty to the plaintiff unless her injury resulted from a risk against which he owed her a duty of protection. "'Negligence' is a breach of a duty. Those only to whom that duty is due and who have sustained injuries of the character its discharge was designed to prevent can maintain actions upon it." Chicago Great Western R. Co. v. Minneapolis, etc., Railway Co. (C. C. A.) 176 F. 237, 241, 20 Ann. Cas. 1200.

The court Instructed the jury that, if the boxes were located on the sidewalk, the following statute was applicable: "* * * Any person * * * through whose negligence or carelessness any obstruction, defect, insufficiency or want of repair is caused upon any highway, shall be liable to any person injured by reason thereof. * * *" P. L. c. 89, § 1.

With reference to the defendant's alleged breach of this statute, the law is very clear. The violation of a statute or ordinance becomes an actionable wrong only when the consequences contemplated by the provision in question have actually resulted from its violation. If none of the consequences which the enactment was designed to guard against have resulted from its breach, such a breach does not constitute an actionable wrong, even though some other injurious consequence has resulted. It is not enough for a plaintiff to show that the defendant neglected a duty imposed by statute and that he would not have been injured if the duty had been performed. He must go further and show that his injury was caused by his exposure to a hazard from which it was the purpose of the statute to protect him. "The courts are entirely agreed upon this general principle." 20 R. C. L. tit. Negligence, §§ 35, 37; 45 C. J. tit. Negligence, § 111; Am. Law Inst. Restatement of Torts, Tent. Draft No. 4, § 170, Comment H.; Gorris v. Scott, L. R. 9 Exch. 125; Lang v. New York Cent. R. Co., 255 U. S. 455, 41 S. Ct. 381, 65 L. Ed. 729; Boronkay v. Robinson & Carpenter, 247 N. Y. 365, 160 N. E. 400. This principle has been frequently stated and applied in this jurisdiction. Olena v. Standard Oil Company, 82 N. H. 408, 412, 135 A. 27; Lindell v. Stone, 77 N. H. 582, 94 A. 963; Caher v. Grand Trunk R. Co., 75 N. H. 125, 71 A. 225; Brember v Jones, 67 N. H. 374, 30 A. 411, 26 L. R. A. 408; Wentworth v. Jefferson, 60 N. H. 158; Sewell v. Webster, 59 N. H. 586; Norrls v. Litchfield, 35 N. H. 271, 69 Am. Dec. 546.

If the defendant placed boxes on the sidewalk for display purposes, it might be found that he violated the statute above quoted (P. L. c. 89, J 1) and also the provision against obstructing highways (P. L. c. 378, § 8). If in either case the law was violated, it was because the boxes constituted an obstruction to public travel and not because their contents, if improperly managed, might become dangerous to pedestrians. The plaintiff was not injured because the boxes obstructed her passage, and hence, in accordance with the foregoing principle, she cannot recover because of their illegal presence upon the sidewalk.

If the jury found that the boxes were located in the entrance to the store, it is difficult to find in the evidence any ground for the conclusion that their presence there involved a breach of duty toward travelers upon the sidewalk. The theory of plaintiff's counsel, as disclosed by his questions to witnesses, seems to have been that the boxes were placed so close to the line of the sidewalk that in some way they menaced the safety of passersby. If, upon the evidence, such a conclusion were possible, the plaintiff's case, upon this basis, would fail for reasons similar to those set forth above.

Negligence is a relational concept. "All acts taken apart from their surroundings are indifferent to the law." Holmes, Com. Law, 54; Garland v. Boston & M. Railroad, 76 N. H. 556, 86 A. 141, 46 L. R. A. (N. S.) 338, Ann. Cas. 1913E, 924. The legal quality of an act is determined by considering upon what persons and in what way it might be expected to take effect. It may be said that negligence is conduct involving an...