Frear v. Manchester Traction, Light & Power Co.

• Decision Date: 07 June 1927
• Citation: 139 A. 86
• Parties: FREAR v. MANCHESTER TRACTION, LIGHT & POWER CO.
• Court: New Hampshire Supreme Court

139 A. 86

FREAR

v. MANCHESTER TRACTION, LIGHT & POWER CO.

Supreme Court of New Hampshire. Hillsborough.

June 7, 1927.

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

Action by Katherine Frear against the Manchester Traction, Light & Power Company and others. Verdicts for plaintiff after trial by jury. Transferred on defendants' exceptions to denial of their motions for nonsuits and directed verdicts and to the refusal to give requested instructions to the jury. Judgment for defendant named, and new trial as to the other defendants.

Case for negligence. Trial by jury, and verdicts for the plaintiff.

The action is brought to recover for personal injuries received by the plaintiff by reason of the collapse of a Ferris wheel upon which she was riding. The wheel was located in an amusement park owned by the traction company, and leased by it to the Manchester Street Railway. There was also a lease to Barney John Williams of space in the park upon which he was to set up and operate the wheel. The railway and Williams were joined as defendants by amendment.

The railway advertised the park and the attractions therein as open to the public. Williams paid a percentage of his receipts for the lease of his concession. Other facts are stated in the opinion.

Transferred by Matthews, J., upon the defendants' exceptions to the denial of their several motions for nonsuits and directed verdicts and to the refusal to give requested instructions to the jury.

McLane & Davis and J. R. McLane, all of Manchester, for plaintiff.

Warren, Howe & Wilson and DeWitt C. Howe, all of Manchester, for defendants.

PEASLEE, C. J. The case presents questions as to the sufficiency of the evidence to sustain verdicts against the several defendants, and as to the charge.

I. The underlying question is whether there was evidence to charge Williams with failure to use due care.

The accident resulted from the breaking of the axle of the wheel. There was evidence that the axle was of insufficient size, and that, in addition to this defect in the original construction, the supports at one bearing were not sufficiently secured, and that as a result there was improper motion of the bearing, thereby putting still further excessive strain upon the axle. These two defects, or either of them, if found to exist, would warrant a finding of negligence on the part of one responsible for the reasonable safety of the wheel.

There was also undisputed proof that the axle was of the size used by the maker of the structure, who apparently built a considerable number of Ferris wheels, that the wheel, in question had been successfully operated for some years and that it was bought by Williams of the former operator.

From this it is argued that Williams is free from any fault as to the size of the axle, because it was a "standard make," and because he reasonably relied upon the experience of the former owner.

It is said that in these respects Williams learned as much about it as the average man would have learned, and is therefore free from fault. It may be conceded that a person with no expert knowledge of the sufficiency of steel to withstand strain would not appreciate the danger. But that does not dispose of this issue. The question is whether the man of Williams' lack of scientific knowledge ought not to have appreciated his ignorance, and have taken steps to obtain the expert advice necessary to enable him to act intelligently upon the matter he had to decide.

Gobrecht v. Beckwith, 82 N. H. ——, 135 A.

20. He was about to enter upon an undertaking involving highly dangerous situations to the patrons of his venture. It was essential that the precautions he took should measure up to such a situation.

The defense of purchase of a fabrication which was "standard make," does not avail the defendant. It may be that a certain product may have been so tested by use and so guaranteed by the character and reputation of the maker that a jury would not be permitted to charge the user thereof with negligent failure to ascertain an inherent defect apparent to one skilled in the subject. But there was no proof of such a situation here. All that appeared was that a named concern made this and other Ferris wheels with such an axle, that none of the witnesses ever heard of one being broken, and that an insurance inspector approved or "passed" them on his inspections. There was no contradiction of the testimony that, according to accepted engineering practice a very much larger axle should have been used; and it also appeared that clanger of breaking was constantly increased by the use of the wheel.

Upon this evidence there was a substantial issue of fact presented. Would not the averago man, entering upon an undertaking involving such hazards to many other persons, make investigation, and inquire of those skilled in the science of steel construction? It would be manifest to him that he had no sufficient knowledge to pass upon the question, and that it was one for expert engineers. It cannot be said as matter of law that in such an undertaking he would rely upon the maker, or assume that use for a few years was a sufficient guaranty of continued safety. Firszt v. Capitol, etc., Co., 98 Conn. 627, 120 A. 300, 29 A. L. R. 17.

Rollins Engine Co. v. Forge Co., 73 N. H. 92, 59 A. 382, 68 L. R. A. 441, was an action to recover damages from the maker of a piston rod for a stationary engine. One defense was that the defect was a concealed flaw in the steel, and that the defendants purchased the billet from a reputable manufacturer. "The defendants knew the forging was to be used for a piston rod for a steam engine. Merely purchasing the steel from a reputable manufacturer may not be due care in the selection of the material for such a purpose. It may be, and the evidence which the defendants offered indicates, that there are tests which can be applied to determine the character of steel. Whether the defendants did all that due care required was for the jury, and the question should have been submitted to them." 73 N. H. 95, 59 A. 384 (68 L. R. A. 441).

In like manner it was open to Williams to obtain information as to the sufficiency of the structure he proposed to operate. If there is any distinction to be drawn between that case and this, it is in the plaintiff's favor.

Apart from responsibility for fault in original design, the evidence that the support was not properly secured, and that this put an added strain upon the axle, was sufficient to call for the submission of the case to the jury. The motion for a nonsuit as to Williams was rightly denied.

II. The issue of liability of the street railway involves the question whether there is any evidence of a relation existing between the railway and the plaintiff, and the extent of the duty arising from such relation.

The railway was the lessee of the park as a whole, and advertised it as a place of public resort. A lease of space for the erection of a Ferris wheel was made to Williams by the railway's lessor. This was after the execution of the lease to the railway, but it appeared that the lessor, the traction company, was also sole owner of the railway stock, and that leases like the one to Williams were so made by a mutual understanding between the company and the railway.

The public advertisements of the park were usually unsigned. Some of them included an express invitation to ride upon the "Honeymoon Express," as the Ferris wheel was called. This advertising was done by or on behalf of the railway.

That such an invitation created a relation between the invitor and those who came upon its premises in accordance with the invitation is not open to serious question. Hobbs v. George W. Blanchard & Sons Co., 75 N. H. 73, 70 A. 1082, 18 L. R. A. (N. S.) 939. The real issue relates to the Williams lease and its effect upon the duty of the railway as to the condition and operation of the premises leased to him.

Nonliability in those respects is urged upon two grounds. A landlord is not liable to his tenant's guests for the tenant's negligent maintenance of the leased premises. An owner is not responsible for the conduct of an independent contractor. The soundness of these general rules is not questioned. But, upon the evidence in this case, it could be found that neither of them was applicable to the situation.

The railway invited the plaintiff, as one of the public, to the park. "The liability in such a case should be coextensive with the inducement or implied invitation." Plummer v. Dill, 156 Mass. 420, 430, 31 N. E. 128, 130 (32 Am. St. Rep. 463). As before stated, the invitation was not merely a general one, but specified the "Honeymoon Express" as one of the attractions which it offered. This structure was within the railway's park. In such a situation the public would be justified in assuming that the railway invited them to take the ride upon its premises. The railway is chargeable with knowledge of this reasonable attitude of the public, and hence arose the duty to use due care to see that the wheel was safe.

The relation of the parties is established by their conduct towards each other. It is not varied or nullified by facts known to one and not communicated to the other, when the possessor of superior knowledge also knows that the other is probably ignorant. The invitation imposed a duty to use due care to have the place safe as far as the railway ought to have understood that the public would understand that the invitation extended.

The extent of the railway's duty is not measured by the conscious reliance of some individual visitor upon its specific invitation to ride upon the wheel. The railway voluntarily assumed a certain position in relation to the public. In some way the plaintiff became informed of this place of public resort. Such information came either directly or indirectly from the railway. Her entry upon the premises resulted from the railway's invitation, and the...