Hobbs v. George W. Blanchard & Sons Co.

• Decision Date: 06 October 1908
• Citation: 70 A. 1082,76 N.H. 73
• Parties: HOBBS v. GEORGE W. BLANCHARD & SONS CO.
• Court: New Hampshire Supreme Court

70 A. 1082

76 N.H. 73

HOBBS

v. GEORGE W. BLANCHARD & SONS CO.

Supreme Court of New Hampshire. Coos.

Oct. 6, 1908.

Transferred from Superior Court, Coos County; Pike, Judge.

Action by N. W. Hobbs, administrator, against the George W. Blauchard & Sons Company. Transferred from the superior court on defendant's exceptions on verdict for plaintiff. Verdict set aside, and exception to denial of motion for nonsuit overruled.

See, also, 65 Atl. 382.

Case for negligently killing the plaintiff's intestate, a boy 14 years old. Trial by jury and verdict for the plaintiff. Transferred on the defendant's exceptions to the denial of its motions for a nonsuit and that a verdict be directed for it upon each issue tried. The case is that heretofore reported (74 N. H. 116, 65 Atl. 382), and was submitted to the jury upon two issues as to the defendant's negligence: (1) That it carelessly put the dynamite near the camp door after it knew the plaintiff's intestate was on the premises; (2) that, having reasonable grounds to apprehend that trespassers would thereafter come upon the premises, it created an unnecessary and extraordinary hazard, not required for the reasonable prosecution of its business. It also appeared that it was as probable that the boy exploded the dynamite by intentionally striking it, as by accidentally coming in contact with it.

Henry F. Hollis, Thomas H. Madigan, Jr., and Edmund Sullivan, for plaintiff.

Drew, Jordan, Shurtleff & Morris and Rich & Marble, for defendant.

PEASLEE, J. It is not necessary to review the decision that putting the dynamite where the deceased could come in contact with it, after his presence on the premises was known, would be active intervention within the rule as heretofore applied in this state. Hobbs v. Company, 74 N. H. 116, 65 Atl. 382. Conceding that it would be, there was no sufficient evidence to establish the fact. Lacombe (the man who handled the dynamite) was called as a witness for the plaintiff, and denied that he put the dynamite there at the time alleged. The plaintiff was then allowed to contradict the witness by using a deposition in which he testified that he did put it there at that time. The effect of the deposition as evidence was merely to destroy the contradicted statement. It was not positive evidence of the contradicting facts. Lydston v. Company, 75 N. H.? 70 Atl. 385, and authorities cited. There was no other direct evidence on this question, and the case rests upon the surrounding circumstances. It was the practice and the defendant's rule to leave the dynamite in a safe place. It was not seen by the men in camp, but its position was a little away from the path behind a tree. There was some contradiction in Lacombe's story of how he used his time the morning before the accident. From this it is argued that it is not likely that Lacombe left the dynamite there Saturday, in violation of his habit and of the rule, and to the danger of the men in camp, who would have seen it if it had been there over Sunday. It is further urged that Lacorabe's unsatisfactory story of what he did Monday could be found to be a fabrication, and that he was, in fact, engaged in blasting. On the other hand, it is argued that violation of habit and rule was as likely to occur on Monday as on Saturday, that the dynamite was partly concealed, and that as, Lacombe did many kinds of work, it might as well be inferred that he did one thing as another in the time which he did not account for. There is in this evidence no substantial preponderance in the plaintiff's favor. Habit and rule were as much violated by leaving the dynamite there on one day as on the other. The evidence that the men did not see it there is of no practical weight. The inference as to what Lacombe was doing Monday is too remote to be considered. It is quite similar to that in Cole v. Boardman, 63 N. H. 580, 581, 4 Atl. 572, 575. "This would be an inference from an unauthorized inference ?one presumption resting on another that rests on nothing. The law of evidence requires an open, visible connection between the principal and evidentiary facts and the deductions from them, and does not permit a decision to be made on groundless inferences." There being no sufficient evidence of active intervention, the submission of that issue to the jury was error, for which the verdict must be set aside.

The plaintiff was also permitted to go to the jury upon the theory that the defendant was liable to trespassers for unusual and dangerous antecedent acts which the ordinarily prudent man would not have done in the prosecution of the same business. Authority for this proposition was evidently thought to be found in the opinion in this case. Hobbs v. Company, 74 N. H. 116, 120, 121, 65 Atl. 382. But, according to the former decisions in this state, the rule of the common law is otherwise; and the true interpretation of the opinion is in harmony with those decisions. The rule is elaborately stated by Judge Jeremiah Smith in 11 Harvard Law Review, 349 et seq. "To adults entering without permission the landowner owes some legal duties. He is under a duty not to intentionally inflict harm upon' a trespasser, save when he is exercising within legal limits the rights of defense and expulsion. He is also, by the better view, under a duty to avoid harming the trespasser by negligent acts which result in actively bringing force to bear upon the trespasser. In other words, he is under a duty to use care not to harm the trespasser by bringing force to bear upon him. It is a mooted question whether this duty is confined to cases where the presence of the trespasser is known to the landowner. Some authorities hold that the owner may, in special circumstances, be under a duty to use care to ascertain whether trespassers are present before he sets in motion a force which would be likely to endanger any such persons if within reach. But the alleged duty, if admitted, is material only when it is sought to make the landowner liable for actively bringing force to bear upon the trespasser. On the other hand, the landowner is under no duty to have his land in safe condition for adult trespassers to enter upon. The law does not oblige him to keep his premises in repair for the benefit of a trespasser. The latter has ordinarily no remedy for harm happening to him from the nature of the property on which he intrudes. He takes the risk of the condition of the premises. It is not negligence in a landowner to use his land for his own convenience in a manner which may occasion danger to a future trespasser thereon. It is no breach of duty to a trespasser 'that a man's premises were in a dangerous state of disorder, whatever the consequences to the former.' Nor is there any obligation to warn trespassers of dangers not readily apparent (assuming, of course, that the dangers were not prepared with intent to harm trespassers)." And after considering liability for active intervention, as contrasted with that for mere condition of premises, he says (page 344): "The first case is that of a known, present and immediate danger, one which is imminent and reasonably certain to result in harm, unless the owner then and there does, or omits to do, some act, the doing or omitting of which would avoid the danger. In the second case the danger may be said to exist chiefly in anticipation. It depends on the course of future events, upon circumstances as yet unknown and fortuitous. In the first case the duty imposed upon the landowner involves simply a temporary, generally only a momentary, interruption of his user; requires only temporary precautions; does not include a duty to put the premises in such condition as to prevent the recurrence of similar emergencies in the future; but merely requires the use of care in a present and known emergency. In the second case the duty sought to be established is to guard against future dangers. It must frequently involve permanent changes in the mode of user, sometimes necessitating such expense and trouble as would be practically prohibitive of certain modes of user, and in some cases compelling the abandonment of all profitable use." His conclusion that in the second case supposed the landowner owes no duty to the trespasser is supported by all that has been decided, and by practically all that has been said on the subject by the court of this state. The first case in which the question arose was that of a child trespasser injured by the dangerous condition of the premises trespassed upon. It was decided that, "for injuries received by strangers upon his premises through his want of care, he [the landowner] is liable only to those who may at the time be there by Invitation, by license express or implied, or upon legitimate errand." Clark v. Manchester, 62 N. H. 577 (1883).

Three years later (1886) the same rule was applied to a child trespasser who was attracted to and injured upon an unlocked turntable. "A trespasser ordinarily assumes all risk of danger from the condition of the premises; and, to recover for an injury happening to him, he must show that it was wantonly inflicted, or that the owner or occupant, being present and acting, might have prevented the injury by the exercise of reasonable care after discovering the danger." Frost v. Railroad, 64 N. H. 220, 9 Atl. 790, 10 Am. St. Rep. 396. Shortly after these cases were decided others were presented which illustrate another phase of the situation. The Clark and Frost Cases related to the condition of premises only. The next case dealt with active intervention, and the condition of premises was not involved. It was held to be the defendant's duty to use ordinary care to discover the presence of the deceased, and the fact as to whether he was a trespasser or a licensee was said to be immaterial except as evidence bearing on the amount of watchfulness that could reasonably be required. Felch v. Railroad, 66 N. H. 318, 29 Atl. 557 (1890). The opinion merely...