Jackson v. Pub. Serv. Co. of N.H.

• Decision Date: 06 December 1932
• Parties: JACKSON v. PUBLIC SERVICE CO. OF NEW HAMPSHIRE et al.
• Court: New Hampshire Supreme Court

163 A. 504

JACKSON

v. PUBLIC SERVICE CO. OF NEW HAMPSHIRE et al.

Supreme Court of New Hampshire. Hillsborough.

Dec. 6, 1932.

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

Case for negligence by Richard Jackson per pro ami against the Public Service Company of New Hampshire and another. Verdict for plaintiff against named defendant. Case transferred.

Judgment for the defendants.

Case for negligence. Trial by jury with verdict for the plaintiff against the company. As to the other defendant, the Manchester Street Railway, a nonsuit was ordered, subject to exception. The plaintiff was a spectator at the skating rink in Pine Island Park in Manchester, and was injured by the dropping of the shutter to an opening in the wall, through which he was leaning watching the skaters.

The issue in the case was whether either of the defendants was responsible to the plaintiff for the defective condition of the shutter support. The company is the owner of the park, which it had leased to Barney Williams, who was in possession. The railway operates the street car system in Manchester, and has a terminal at the park. Further facts are stated in the opinion.

Transferred by Burque, J., upon the company's exception to the denial of its motion for a nonsuit, and the before stated exception by the plaintiff.

Michael F. Shea, Timothy F. O'Connor, and Myer Saidel, all of Manchester, for plaintiff.

Warren, Wilson, McLaughlin & Bingham, of Manchester (Robert P. Binglnun, of Manchester, orally) for defendants.

PEASLEE, C. J.

The defendants' motions for nonsuits present issues similar to those in Frear v. Manchester Traction, Light & Power Company, 83 N. H. 64, 139 A. 86, 61 A. L. R. 1280. Argument has been presented as to the nature of invitation required to charge one with the duty to use care as to the condition of premises, and also as to the sufficiency of proof of any invitation.

It is urged that the decision in the Frear Case is faulty, in that it fails to consider the alleged necessity for proof of a quite specific reliance upon the defendants' undertaking. In view of the contention now made, the grounds for the legal conclusions reached in that case have been reconsidered.

If either defendant extended an invitation to the public to visit the park as the inviter's place of amusement, it is answerable according to the expectable consequences of such invitation. Pickford v. Abramson, 84 N. H. 446, 152 A. 317, and cases cited. Reasonable men would understand that people would come there who never saw the original document extending the invitation, and who never heard who owned or controlled the park or extended the invitation. They may come simply because they see others entering what is evidently a place for public recreation and amusement. Yet these last comers are just as truly invited as was the first visitor who came because he had read the signed advertisement.

Having thus induced them to come there, the inviter is under a duty to use reasonable care to see to it that the premises are safe. The duty is imposed because of the invitation extended. It is imposed in the application of the general rule of duty that one's conduct must be reasonable under all the circumstances of the case. The invitation and its acceptance create a relation between the parties, and from this relation the duty arises.

It is strongly urged on behalf of the defendants that the imposition of duty can be worked out only upon a theory of estoppel, that having extended such an invitation the inviter is estopped to deny control of the premises, and therefore is under a landowner's duty to see to it that they are in a reasonable condition.

The simpler statement of the obligation is that it is commensurate with the undertaking of the inviter. The situation is similar to that where one undertakes to act as a physician. He is answerable for failure to exercise the care and skill of one who is what the defendant has assumed to be. Burnham v. Stillings, 76 N. H. 122, 79 A. 987. It is not a matter of contract, for the obligation to use such care and skill as the undertaking reasonably calls for is imposed because of a privity of duty as distinguished from that of contract. Pittsfield, etc., Company v. Pittsfield Shoe Company, 71 N. H. 522, 53 A. 807, 60 L. R. A. 116; Edwards v. Lamb, 69 N. H. 599, 45 A. 480, 50 L. R. A. 160.

"The defendant, having assumed to act towards a known situation, was bound by the usual rule of reasonable conduct." Knowles v. Exeter Mfg. Company, 77 N. H. 268, 270, 90 A. 970, 971. "If he assumes to act, his conduct must be reasonable. Huskie v. Griffin, 75 N. H. 345, 74 A. 595, 27 L. R. A. (N. S.) 966, 139 Am. St. Rep. 718." Kambour v. Boston & M. R. R., 77 N. H. 33, 46, 86 A. 624, 631, 45 L. R. A. (N. S.) 1188. Liability is not imposed because the inviter is estopped to deny control of the premises, but because he assumed a duty to use care as to their condition. Such assumption goes with and is incidental to the invitation.

But whether this be called an estoppel to deny control, or an assumption of obligation to take precautions, is not very important here. The difficulty with the defendants' position is that, granting that there must be an estoppel, all the elements therefor are present in the case of invitation to the general public. As before stated, the invitation once put in circulation is extended in a variety of ways. People repeat it to other people. They repeat it not only by word, but also by the act of going to the park. All this is to be foreseen by the originator of the invitation. It is not only foreseen but desired, and it is all a part of his invitation. The cause for people's going there is the inviter's act.

But it is said that there must be reliance upon the invitation. This is true in a limited sense only. Without any conscious thinking upon the subject, the visitor does in fact rely upon it, just as he does upon that of the storekeeper or hotel landlord. He does not reason out his legal rights in advance, nor demand the name of his inviter before he enters. But when he is injured the inquiry begins. Who was it asked me to come in here, as to his place of amusement, or of business, or of rest and refreshment? And when the responsible party is found, he is justly charged with the truths and consequent obligations his invitation implied. Pickford v. Abramson, 84 N. H. 446, 152 A. 317. He is answerable to the party who has been injured through action taken in consequence of the representation. Loss or damage caused by the representation is recoverable. Conway Nat. Bank v. Pease, 76 N. H. 319, 82 A. 1068.

The rule announced in Frear v. Manchester Traction, Light & Power Company, 83 N. H. 64, 139 A. 86, 61 A. L. R. 1280, is reaffirmed. If the defendants, or either of them, were shown to have invited the public to visit the park as the inviter's place of amusement and recreation, the plaintiff, who went there as one of the public, would be entitled to demand that the defendant exercise reasonable care to see to it that the premises were safe for the intended use.

The further position of the defendants is that there was no sufficient evidence of invitation from either of them. As to the Public...