Menard v. Cashman.

• Decision Date: 07 October 1947
• Citation: Menard v. Cashman., 94 N.H. 428, 55 A.2d 156 (N.H. 1947)
• Parties: MENARD v. CASHMAN.
• Court: New Hampshire Supreme Court

55 A.2d 156

MENARD

v.CASHMAN.

Supreme Court of New Hampshire.

Oct. 7, 1947.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Superior Court, Hillsborough County; Tobin, Judge.

Action of case by Rose Menard against Margaret E. Cashman to recover damages for personal injuries sustained by plaintiff. Verdict for plaintiff and defendant brings exceptions.

Exceptions overruled and judgment on the verdict.

Action of case to recover for personal injuries arising out of a fall suffered by the plaintiff on June 4, 1941, while descending a common stairway in the defendant's block in Concord. The plaintiff had called at the Plaza Beauty Parlor, situated on the second floor of the block, and testified that her fall occurred when she caught her left heel upon a composition tread on the second step from the top of the stairs leading to the street. Her claim of negligence was predicated upon the alleged unsuitability of the applied tread and its manner of application. Other facts appear in the opinion. The same action was considered in Menard v. Cashman, 93 N.H. 273, 41 A.2d 222.

Trial was by jury, with a view, and a verdict was returned for the plaintiff in the sum of $5,500. The defendant's bill of exceptions, allowed by Tobin, J., presents exceptions to the denial of motions for a nonsuit and directed verdict, and to set aside the verdict, and to vacate an order denying the latter motion. The defendant also excepted to rulings admitting and excluding certain evidence, to portions of the plaintiff's argument, and to the denial of requests for instructions.

Robert W. Upton, of Concord, for plaintiff.

Murchie & Murchie and Alexander Murchie, all of Concord, for defendant.

DUNCAN, Justice.

The defendant's motions for a non-suit and a directed verdict were properly denied.

It appeared that the applied treads were installed by the defendant approximately four months before the accident. They were of flexible corrugated rubber composition, three thirty-seconds of an inch thick, affixed to the surface of the wooden stairs without glue or cement, by means of brass nails. Each tread was smaller than the stair, so that the stair extended eleven inches beyond the tread on either side, and approximately two and one-half inches behind the tread, between its rear edge and the riser. The brass nails which held the back of the particular tread claimed to have caused the accident were five in number, the outside nails being approximately an inch from the outer edges of the tread, and the intermediate nails being spaced at intervals of eight, ten and one-eighth, and eight inches respectively.

There was evidence that standard practice required that stair treads in semi-public buildings, such as the defendant's, cover the entire stair, so as to present a uniformly even surface. It could be found that those used by the defendant were unsuitable, both in failing to comply with this standard, and because the method of attachment was insufficient to eliminate the danger of bulging, inherent in their flexible and expansive character.

The plaintiff testified that she started to descend, holding the right-hand rail, and caught her heel on the second tread down. The defendant's suggestion of physical impossibility is not impressive. Shortly after the accident, the back of the tread was found to be pulled up from the stair over a distance of three inches, between the first two nails on the right, going down. That the plaintiff should have set her left heel down within twelve to fifteen inches of the side of the stair, and behind the applied tread cannot be regarded as impossible. Persons having occasion because of youth, age, weight, or disability, to descend stairs cautiously, frequently place their feet well back on the stair. To require the defendant to anticipate such conduct does not violate concepts of reasonableness.

Upon the plaintiff's testimony it could be found that she was an invitee of the defendant's tenant. A finding that the defendant failed to exercise the requisite care for her safety was warranted by the evidence. The law is settled that it is ‘a landlord's obligation to keep in reasonably safe condition that portion of the premises retained in his possession and maintained or held open by him for the use of the tenant and his invitees.’ Douglas v. Hollis, 86 N.H. 578, 580, 172 A. 433, 434.

In support of her motions, the defendant argues that the plaintiff could be found to be a mere licensee of the tenant, and exceptions were taken to the denial of several requests contemplating submission to the jury of the issue of whether the plaintiff's status was that of invitee or licensee. In calling at the tenant's beauty parlor, the plaintiff sought to obtain scissors to sharpen, a business in which she was engaged with her husband. The fact that she had obtained no business upon a visit several weeks before, did not make unreasonable the expectation of greater success upon the second trip. If the evidence that she was invited to return were disbelieved, there was no evidence that her return was forbidden, or that she was given to understand there was no prospect of future business. She was at least a licensee of the tenant, and the defendant owed her the same duty of care whichever status she had.

The stairs in question afforded the sole means of access to the building, and were maintained by the defendant not only for the use of her various business and residential tenants, but also for the use of persons having lawful occasion to visit them. The plaintiff's use of the stairs was for a purpose for which they were provided. It was lawfully made with the implied permission of the tenants upon whom she called, and what is more important, upon the implied invitation of the defendant. ‘The owner of property on a business street cannot negligently disregard the customary actions of the public in the use of entrances leading therefrom.’ Pickford v. Abramson, 84 N.H. 446, 450, 152 A. 317, 319. ‘The gist of the liability consists in the fact that the person injured * * * entered the premises because he was led to believe that such use was * * * in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be so used.’ Sweeney v. Old Colony & N. Railroad, 10 Allen, Mass., 368, 374, 87 Am.Dec. 644; Hobbs v. George W. Blanchard & Sons Company, 75 N.H. 73, 80, 70 A. 1082, 18 L.R.A.,N.S., 939. There was no dispute concerning the defendant's control of the stairs, or the purpose for which they were provided. The imposition of liability under the circumstances disclosed meets the requirements both of an obligation coextensive with the defendant's invitation (Plummer v. Dill, 156 Mass. 426, 430, 31 N.E. 128, 32 Am.St.Rep. 463), and of the existence of a business interest on the part of the defendant. See Sandwell v. Elliott Hospital, 92 N.H. 41, 24 A.2d 273. As the Restatement of Torts indicates, the defendant had a ‘business interest in the use of these facilities by any person whom his lessee might choose to admit, irrespective of whether such person was a business guest of the tenant or merely a gratuitous licensee. Sec. 332, comment h. Having by implication induced the plaintiff to enter over her premises, the defendant assumed an obligation to keep them in reasonably safe condition. Pickford v. Abramson, supra. The obligation extended not only to invitees of the tenants, but also to their licensees. Restatement, Id., § 360; Wool v. Larner, 112 Vt. 431, 26 A.2d 89; Esserman v. Madden, 123 Conn. 386, 195 A. 739; Roth v. Protos, 120 N.J.L. 502, 504, 1 A.2d 10. In the determination of the issue of the defendant's negligence, the plaintiff's relation to the tenants was thus immaterial, it appearing that she called with their consent. The defendant's several requests for instructions suggesting a different rule were properly denied.

The evidence bearing upon the plaintiff's conduct was not such as conclusively to demonstrate lack of care on her part, and the motions for a nonsuit and a directed verdict were rightly denied. Cartier v. F. M. Hoyt Shoe Corporation, 92 N.H. 263, 29 A.2d 423.

The defendant's seventh and eighth requests for instructions related to the issue of the plaintiff's due care, concerning which the instructions given were adequate, though brief. The requested instructions were argumentative, unduly emphasizing a single aspect of the plaintiff's conduct, her failure to observe any defect, and were properly denied. The eleventh request would have made the defendant's liability turn upon the existence of a bulge, and embodied an inaccurate statement of the plaintiff's claim. It was properly denied. Wemyss v. Wyoming Valley Paper Company, 86 N.H. 587, 593, 172 A. 438; Whipple v. Boston & M. Railroad, 90 N.H. 261, 269, 7 A.2d 239. So also were the twelfth and thirteenth requests, which were calculated to emphasize the defendant's evidence as to common usage (see Nason v. Lord-Merrow Excelsior Company, 92 N.H. 251, 256, 29 A.2d 464), and likely to distract attention from the standard of due care which...