Leonard v. City of Manchester
| Decision Date | 03 January 1950 |
| Citation | 70 A.2d 915,96 N.H. 115 |
| Parties | LEONARD v. CITY OF MANCHESTER (two cases). |
| Court | New Hampshire Supreme Court |
SYLLABUS BY THE COURT
In an action against a city to recover for personal injuries sustained in a fall on a highway bridge, evidence of a substantial degree of slope in the bridge plus the fact that the wooden planks were laid lengthwise, which were more inducive to slipping when wet than if laid crosswise, was sufficient to warrant a finding that the bridge was so defective and insufficient as to be unsuitable for travel thereon.
Where the sidewalks on either side of a highway bridge had become impassable due to the accumulation of ice and snow a finding by the jury was proper that the plaintiff's conduct in using the vehicular way to cross the bridge was reasonable.
The test to be applied in determining whether a highway bridge is sufficient for the use it was intended is whether an ordinary man would have maintained such a bridge at the particular place.
Where a fair appraisal of the plaintiff's entire testimony does not conclusively establish its incredibility or that it was necessarily contrary to indisputable facts a finding based upon it will not be set aside.
The fact that one of the contributing causes of the plaintiff's fall on a highway bridge was the wetness of the planking, over which the city had no control, does not relieve it from liability where this was but one of the factors which brought about the accident.
Evidence that snow had not been removed by the city from the sidewalks beside a highway bridge was admissible on plaintiff's contributory negligence in using the vehicular way and on the city's liability as to the reasonableness of this way for pedestrian use.
Where an objection to evidence concerning changed conditions since the accident was sustained and the jury instructed to strike it from their minds as having no bearing on the case the jury is presumed to have followed the instruction.
Case, under Laws 1945, c. 188, part 18, § 17, by Jennie C. Leonard against the City of Manchester for personal injuries received in a fall on a bridge at Stark Street, a public highway in Manchester. Joseph P. Leonard, her husband, brought an action for medical and hospital expenses and loss of wages due to the necessity of his caring for their children. Trial by jury resulting in a verdict for the plaintiffs. The defendant excepted to the admission and exclusion of certain evidence, to the denial of its motions for a mistrial, a non suit and a directed verdict. It also excepted to the instructions to the jury, to the refusal of the Court to give certain requests, to the allowance of parts of plaintiffs' argument, and to the denial of its motions to set aside the verdicts.
On February 27, 1946 at about 6:30 in the morning, Jennie C. Leonard, hereinafter called the plaintiff, on her way to work walking westerly in the vehicular roadway on a bridge which spanned the lower canal at Stark Street, (in the Amoskeag Mill-yard, so-called), slipped and fell on the southerly portion of the roadway, while about halfway across the bridge, thereby receiving personal injuries. This bridge running east and west across the canal was a seven-panel, bowstring, arch-type structure, built of metal except for the wooden flooring. It was 55 1/2 feet long with 7 foot sidewalks on the north and south sides for pedestrian travel, the vehicular way in the center measuring 24 feet. It had a 7.9% downhill grade, dropping about four feet five inches from the easterly to the westerly edge of the structure. Its flooring consisted of wooden planks running lengthwise of the bridge about eight inches in width, uniformly spaced about three-eights to one-half inch apart, and spiked to girders underneath. During the period from midnight to the occurrence of the accident some snow and freezing rain had fallen. The testimony is in conflict as to whether or not there was any precipitation at the time of the mishap.
Other facts are stated in the opinion.
Transferred by WHEELER, J.
McLane, Davis, Carleton & Graf and Stanley M. Brown, Manchester (Mr. Brown orally), for the plaintiff.
J. Francis Roche, City Solicitor, and Sheehan, Phinney & Bass, Manchester, (William L. Phinney, Manchester, orally), for the defendant.
The defendant's motions for a non-suit and a directed verdict were properly denied and its exceptions thereto are overruled. The question raised by these exceptions is 'whether on the evidence any verdict could be found for the plaintiff.' Chabot v. W. H. McElwain Company, 79 N.H. 230, 231, 107 A. 642. In passing upon these motions 'the Court was obliged to consider the evidence for the plaintiff as true and to construe all the evidence most favorably to the plaintiff.' Shimkus v. Caesar, 95 N.H. 286, 287, 62 A.2d 728, 729.
There was expert testimony on behalf of the plaintiff to the effect that this bridge was not suitably constructed for walking traffic, the defect therein being the running of the planking in a lengthwise direction which directly induces slipping when the surface becomes wet. On a level surface a wooden plank is 74% more resistant to slipping across the grain than it is lengthwise of the grain (coefficient of friction). A 7.9% sloping of the surface would greatly increase the liability to slip aside from the above coefficient of friction. And this tendency would further be greatly increased if the planks were wet with rain, snow or ice.
The plaintiff testified that she was walking on wooden planks of the bridge which were wet and slippery. Her foot slipped on the wet wood of the bridge, she fell and received the injuries complained of.
Were these injuries which the plaintiff received in her fall incurred by reason of a defect, insufficiency, or want of repair in the structure, Bernier v. Town of Whitefield, 80 N.H. 245, 246, 116 A. 133, of such bridge which rendered it unsuitable for travel thereon? Laws 1945, supra. There is no question that the roadway on which the plaintiff fell was part of the structure of this bridge. Wilson v. Town of Barnstead, 74 N.H. 78, 65 A. 298. In view of the fact that the sidewalks on either side of the bridge had been impassable for quite some time prior to the day of the accident by reason of their not having been plowed and were still in that condition on that day, the jury could properly find that the plaintiff was reasonably using the vehicular way to get across the bridge, Murphy v. Granz, 91 N.H. 244, 245, 17 A.2d 449, and that the defendant should have reasonably anticipated such a use being made. The test to be applied in determining the sufficiency of this bridge for this use of it by the plaintiff, and the numerous other persons so using it, is whether it was such a bridge as the ordinary man would have maintained at such a place. Hickey v. City of Berlin, 78 N.H. 69, 70, 96 A. 295; Chapman v. Town of Lee, 80 N.H. 484, 486, 119 A. 440.
A slope of 7.9% in that bridge would not in and of itself render it insufficient. The fact alone that the planks were laid lengthwise instead of crosswise might not make it so either. Add thereto, however the further evidence, that wooden planks laid lengthwise offer less resistance to slipping than planks laid crosswise, that this difference in liability to slip is increased when these planks are in a sloping surface, that wetness from ice, rain, snow, or other precipitation of moisture further accentuates this difference in resistance to slipping, the jury could then reasonably find that the maintenance by the defendant of a surface so laid on a bridge of this slope, charged, as it reasonably must be, with the knowledge that its surface would become wet, constituted a defect, insufficiency or want of repair which rendered this bridge unsuitable for travel thereon. Munroe v. Deerfield, 84 N.H. 144, 147 A. 411.
Could the jury further properly find that plaintiff's accident was caused by this defect, insufficiency or want of repair? The defendant contends that the plaintiff's fall resulted from her slipping on the freezing rain and snow which had coated the surface of the bridge so that the alleged defect was not the cause of the accident. Bernier v. Town of Whitefield, supra. It further argues that plaintiff, because of a statement made in her deposition that it must have been snow on the bridge that caused her to slip, may be prevented, under the rule of Harlow v....
To continue reading
Request your trial
-
Sigel v. Boston & M.R.R.
...now before us, the evidence and all reasonable inferences therefrom, construed most favorably to the plaintiffs (Leonard v. City of Manchester, 96 N.H. 115, 70 A.2d 915), would permit the following findings by the The accident giving rise to these suits resulted from a collision between a B......
-
State v. Story
...the Court has said or done in this case.' It is to be presumed that these instructions were heeded by the jury. Leonard v. City of Manchester, 96 N.H. 115, 120, 70 A.2d 915. The supplemental charge was an amplification of one of the elements of the crime. And it is our opinion that consider......
-
Carrigan v. Roman Catholic Bishop
...the plaintiff verdicts for the plaintiff could reasonably be returned. Sargent v. Alton, 102 N.H. 476, 160 A.2d 345; Leonard v. City of Manchester, 96 N.H. 115, 70 A.2d 915. The standard by which the conduct of the defendants is to be judged is neither doubtful nor disputed. They were requi......
-
Dunham v. Stone
...true and to construe all the evidence most favorably to the plaintiff. Shimkus v. Caesar, 95 N.H. 286, 287, 62 A.2d 728; Leonard v. Manchester, N.H.1950, 70 A.2d 915 The plaintiff was injured on October 22, 1947, receiving a fracture of the first lumber vertebra. He was taken to the hospita......