Lavoie v. Nashua Gummed & Coatedpaper Co.
| Citation | 79 N.H. 97,105 A. 4 |
| Parties | LAVOIE v. NASHUA GUMMED & COATEDPAPER CO. |
| Decision Date | 06 November 1918 |
| Court | Supreme Court of New Hampshire |
Exceptions from Superior Court, Hillsborough County; Marble, Judge.
Action by Wilfred Lavoie, administrator, against the Nashua Gummed & Coated Paper Company. Judgment of nonsuit, and plaintiff excepts. Exception overruled.
Henri A. Burque and Wason & Moran, all of Nashua, and Martin & Howe, of Concord (De Witt C. Howe, of Concord, orally), for plaintiff.
Albert Terrien and Doyle & Lucier, all of Nashua (A. J. Lucier, of Nashua, orally), for defendants.
The defendants maintained a loading platform between their factory or storehouse and the railroad tracks at the level of the floor of a freight car. The platform was 14 feet wide. Beneath it about 10 feet back from the tracks they had sunk an open barrel into which steam and hot water wasted from their pipes. When the factory was in operation, the barrel would be filled with hot water to its top, which was approximately level with the surface of the ground under the platform. In loading the defendants' product, pieces of paper would be torn from the bales and fall upon the tracks and platform. There was no approach to the platform except over the railroad tracks. The deceased, seven years old, came across the tracks under cars standing next the platform and went beneath the platform to get some paper he saw there, fell into the barrel of hot water, and received injuries causing his death. There were men on the platform at the time, but there was no evidence the child was seen by them.
The plaintiff, conceding that the evidence discloses no breach of duty to a trespassing child, claims that the child who was injured came upon the premises by invitation of the defendants, and that they therefore owed him a duty as to the condition of the premises.
Hobbs v. Company, 75 N. H. 73, 70 Atl. 1082, 18 L. R. A. (N. S.) 939.
The evidence was that children had previously come upon the railroad tracks and platform and picked up paper when they were or might have been seen by employes of the defendants; that children had come upon the platform to bring dinners to or upon errands for the workmen; and that upon one occasion a man had given a child a piece of colored paper.
Merely permitting children to pick up paper upon the premises was not an invitation or license to them or others to do so. Clark v. Manchester, 62 N. H. 577, 580. "A mere passive acquiescence by an owner...
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...children as trespassers as a matter of law. See, e.g., Buch v. Company, 69 N.H. 257, 44 A. 809 (1897); Lavoie v. Nashua Gummed & Coated Paper Co., 79 N.H. 97, 105 A. 4 (1918). However, more recent cases such as Dunleary v. Constant, 106 N.H. 64, 204 A.2d 236 (1964), and Smith v. Animal Farm......
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...him no duty; and as it was concluded that such was his status a judgment was ordered for the defendants. In Lavoie v. Nashua Gummed & Coated Paper Co., 79 N. H. 97, 105 Atl. 4, recovery upon this ground was denied because there was no evidence of a negligent failure to know of the child's T......
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