Knowles v. Exeter Mfg. Co.

• Decision Date: 05 May 1914
• Parties: KNOWLES v. EXETER MFG. CO.
• Court: New Hampshire Supreme Court

90 A. 970

77 N.H. 268

KNOWLES

v. EXETER MFG. CO.

Supreme Court of New Hampshire. Merrimack.

May 5, 1914.

Exceptions from Superior Court, Merrimack County; Chamberlin, Judge.

Action on the case for negligence by Anna M. Knowles against the Exeter Manufacturing Company. There was a verdict for plaintiff, and the cause was transferred on defendant's exceptions to the denial of a motion for the direction of a verdict and to the exclusion of evidence. New trial granted.

The evidence tended to show that the defendant, being in possession of two stables one on either side of a private way, which was used as an approach to both, let the stable next to the blind end of the way to one Young. Young permitted the plaintiff to keep her horse in the stable, and it was her habit to go there about half past 7 o'clock each evening to see the horse. The defendant knew she kept her horse there. October 16, 1911, the defendant dug a ditch two-thirds across the space between the stables, to repair water pipes. The ditch was left unguarded, and the plaintiff fell into it when going to the stable according to her custom. When the men quit work upon the ditch at night, Young was present. The defendant offered to show that the workmen asked Young if he wanted lights or barriers put up, and he replied: "No; there is no occasion for it." The evidence was excluded, subject to exception.

Martin & Howe, of Concord, for plaintiff. Eastman, Scammon & Gardner and Samuel K. Bell, all of Exeter, and Edward A. Lane, of Pittsfield, for defendant.

PEASLEE, J. The defendant has argued its motion for a directed verdict as though the excluded evidence of Young's consent to leaving the ditch unguarded had been admitted. But the case cannot be disposed of on that theory. The evidence is not in the case. If it had been admitted, it might have been contradicted, so that the plaintiff could still have gone to the jury upon the theory that no such fact existed. The motion must be decided upon the evidence as it stands.

The claim that the plaintiff was only a licensee upon the premises is not supported by the facts. There was much more than bare toleration of her presence. Young having given her permission to keep her horse in the stable, and she having acted upon the leave given and placed her property there, she had a right to go there at all reasonable times until the permission was revoked and she had reasonable opportunity to remove her property. The fact that her occupancy was without payment of rent did not impair her right to use the common way which led to the building she was rightfully occupying. Even if she were only a licensee, the rule that the defendant must act with due care toward her, when it saw fit to act at all, would be applied. The Massachusetts cases holding that there is no liability to a licensee except for what are there called intentional injuries (Heinlein v. Railroad, 147 Mass. 136, 16 N. E. 698, 9 Am. St. Rep. 676; West v. Poor, 196 Mass. 183, 81 N. E. 960, 11 L. R. A. (N. S.) 936, 124 Am. St Rep. 541; Jones v. Railroad, 211 Mass. 521, 98 N. E. 607), are not followed in this state (Brown v. Railroad, 73 N. H. 568, 64 Atl. 194; 27 Harv. Law Rev. 403).

The claim that the place of accident was not a passageway is advanced, upon the evidence furnished by the photographs; but an examination of them shows wagon tracks covering practically all the space where the ditch was dug. They also show that the ground was sufficiently traveled upon so that it was bare of grass to a point much nearer to the blind end of the way. This evidence, taken in connection with the relative position of the various structures there, shows that there was at least enough to go to the Jury upon this question.

Much stress is laid upon the fact that Young knew of the existence of the open ditch. It is assumed that this knowledge would prevent a recovery by him for injuries caused by falling into the ditch; and as the plaintiff claims under him, it is argued that she cannot recover when he could not. If this were a suit for a breach of the contract of hire, there might be force in the argument But it is not such a suit. The...