Lynch v. L. B. Sprague Inc.

• Decision Date: 28 June 1949
• Docket Number: No. 3830.,3830.
• Citation: 66 A.2d 697
• Parties: LYNCH v. L. B. SPRAGUE, Inc.
• Court: New Hampshire Supreme Court

66 A.2d 697

LYNCH

v.L. B. SPRAGUE, Inc.

No. 3830.

Supreme Court of New Hampshire.

June 7, 1949.

Rehearing Denied June 28, 1949.

COPYRIGHT MATERIAL OMITTED.

Transferred from Superior Court, Carroll County; Goodnow, Judge.

Action on the case by Elizabeth R. Lynch against L. B. Sprague, Inc., for personal injuries suffered by plaintiff while a guest at defendant's hotel. Reserved, the case transferred upon defendant's exceptions.

Judgment on the verdict for plaintiff.

Case, for negligence, to recover damages for personal injuries suffered by the plaintiff on February 21, 1946, while a guest at the defendant's hotel in Conway. The plaintiff was about to descend from an upper bunk in a hotel room when a ladder furnished by the defendant for the purpose fell to the floor, and the plaintiff fell with it. Other facts are stated in the opinion.

There was a trial by jury, with a view of the hotel room and ladder. A verdict was returned for the plaintiff in the sum of $1060. The defendant excepted to the denial of motions to withdraw from the jury ‘the question of liability’ predicated upon each of various paragraphs of the plaintiff's specification, for a nonsuit, for a directed verdict, and to set aside the verdict. In the course of the trial it also excepted to rulings admitting and excluding evidence, to argument by opposing counsel to the jury, to certain instructions to the jury, and to the denial of its requests for instructions. Reserved and transferred by Goodnow, C. J., upon the defendant's exceptions.

Thomas J. McIntyre, Laconia (by brief and orally), for plaintiff.

Charles F. Hartnett, Dover (by brief and orally), for defendant.

DUNCAN, Justice.

The plaintiff's claim of negligence is based primarily upon the alleged failure of the defendant to equip the ladder and bunk with a hook and eye by means of which the one could be secured to the other. The ladder consisted of four steps, each four inches wide, so constructed that the top step rested against the side panel of the upper bunk, which was approximately five and one-half feet high. It was the defendant's practice to attach a screw eye under either end of the side panel of the bunk and a hook to the upper step of the ladder, to ‘steady the ladder and prevent it from going * * * right or left.’ Similar ladders were provided for some thirty rooms in the section of the hotel where the accident occurred, and were used both by guests and by the maids who made up the bunks.

The plaintiff took her room on February 16, and used the ladder without incident to enter and leave the bunk each night and morning until the morning of the twenty-first. She testified that as she prepared to leave the bunk that morning, she first made certain that the ladder was steady, and then put her foot on it when ‘the ladder fell to the floor and (she) fell on the ladder,’ injuring her elbow and side. Immediately afterward she first discovered a hole at the center of the top step of the ladder ‘where a hook * * * was supposed to be.’ She testified that there had been no hook on the ladder during the previous five days, and that she saw no screw eyes on the bunk. She stated that shortly after the accident an employee of the defendant placed a hook on the ladder.

The evidence warranted a finding of negligence on the part of the defendant in failing to take adequate precaution to prevent an accident as a result of the slipping or falling of the ladder. Having installed hooks on the ladders, it could be found to have recognized the need for such precaution. It could also have been found negligent in failing to discover the absence of the hook from the ladder in the plaintiff's room during her occupany of the room prior to the accident. The plaintiff was a business invitee, to whom the defendant owed the duty to make reasonably safe, or give reasonable warning of, dangerous conditions of which it knew, or which in the exercise of reasonable care it should have discovered. Jakel v. Brockelman Bros., 91 N.H. 453, 21 A.2d 155. See also, Cable v. Donahue & Hamlin, Inc., 85 N.H. 258, 161 A. 383; Roy v. Amoskeag Fabrics, Inc., 93 N.H. 324, 325, 41 A.2d 607; Restatement, Torts, s. 343. Since there was evidence from which it could be found that the defendant had failed to perform its duty, the issue of its negligence was properly submitted to the jury.

The defendant's motions to withdraw from the jury the various issues raised by the plaintiff's specification were properly denied. The specification charged the defendant with negligence in failing to keep its premises and furnishings in reasonably safe condition, in failing to conduct adequate inspections, in failing to provide the ladder with a hook, and in failing to warn the plaintiff of the risk in use of the ladder without it or to give reasonable instructions for use of the ladder with safety. The evidence warranted submission of these claims to the jury, for their consideration in determining whether the defendant exercised reasonable care under the circumstances. There was evidence from which it could be found that on prior occasions hooks on ladders had pulled out or become bent. The defendant claimed to make daily inspections. The jury could properly find that the hook was absent during the plaintiff's occupancy of the room and that the defendant was negligent in failing to discover this fact; or if it was discovered, in failing to warn the plaintiff of the risk of using the ladder without a hook, or to instruct her how to do so with safety.

The argument that the absence of the hook was not shown to be causal cannot be adopted. The purpose of the hook was admittedly to steady the ladder, and it could be found that if the ladder had been suitably attached to the bunk the accident would not have happened.

The plaintiff's contributory negligence was not conclusively established. She had had no experience with such a ladder, and as a patron of the hotel was entitled to assume that the ladder was safe for use in the condition in which she found it, in the absence of indication to the contrary. She was under no positive duty to make such an inspection as would have revealed the absence of a hook and the risk resulting therefrom. Cartier v. F. M. Hoyt Shoe Corp., 92 N.H. 263, 29 A.2d 423. The question of her due care was for the jury. Barrett v. Pullman Company, 85 N.H. 33, 153 A. 837. The motions for a nonsuit and a directed verdict were properly denied.

The exceptions relating to evidence present no errors. The plaintiff was permitted to testify on direct examination that she told the defendant's manager that she ‘fell from the ladder because there wasn't any hook,’ and that she previously reported to employees in the hotel office ‘that I had fallen and the reason I had fallen was because there wasn't any hook.’ The defendant's motions to strike out these answers were denied subject to exception. While it is true that prior consistent statements of a party are inadmissible in the absence of evidence of prior inconsistent statements, State v. Slocinski, 89 N.H. 262, 264, 197 A. 560, here the defendant's manager had already testified that he was advised by the ‘front office’ and told by the plaintiff that ‘she had slipped off a ladder.’ The plaintiff's testimony in contradiction of this claim was therefore admissible upon the issue of whether the alleged statements were made. 2 Wigmore, Evidence, § 1126, pp. 198, 199.

Testimony of the plaintiff's attending physician, on deposition, concerning the connection between the plaintiff's condition and the accident was sufficiently related to probabilities, and properly received. The defendant excepted to receipt in evidence of certain testimony on deposition by a physician who took x-rays on July 11, 1946 which first revealed the fracture. It appeared that x-rays taken immediately after the accident disclosed no fracture. The physician under whose supervision the latter were taken was called by the defendant and testified that had there been a fracture, it would have shown, and that the position from which the x-rays were taken would not affect the result. In this state of the record, the testimony of the plaintiff's expert that the failure of the original plates to disclose the fracture was explainable either by ‘malposition,’ or obscuring due to ‘soft tissue swelling’ was competent to rebut the defendant's evidence. See Scott, Photographic Evidence, § 485.

In arguing the point to the jury, plaintiff's counsel made the statement that the defendant's medical witness ‘contradicted the testimony of our doctor * * * in the interpretation of these x-rays,’ and was then interrupted by objection by the defendant. The jury was instructed to take its own recollection, and the objection was pursued no further. It was plain that the argument related to the conflicting testimony as to whether the fracture would necessarily appear in the x-rays first taken, and it was not improper, so far as it...