Paine v. Hampton Beach Imp. Co.

• Decision Date: 31 December 1953
• Citation: 100 A.2d 906,98 N.H. 359
• Parties: PAINE v. HAMPTON BEACH IMPROVEMENT CO. PAINE v. ROY et al.
• Court: New Hampshire Supreme Court

Page 906

100 A.2d 906

98 N.H. 359

PAINE v. HAMPTON BEACH IMPROVEMENT CO.

PAINE v. ROY et al.

Supreme Court of New Hampshire.

Argued Nov. 5, 1953.

Decided Nov. 30, 1953.

Rehearing Denied Dec. 31, 1953.

Sullivan & Gregg, Nashua (James L. Sullivan, Nashua, orally), for plaintiff.

Devine & Millimet, Manchester (Joseph A. Millimet, Manchester, orally), for defendant company.

Ernest R. D'Amours, Manchester, Murchie & Cofran and Paul A. Rinden, Concord (Paul A. Rinden, Concord, orally), for the defendants Roy.

DUNCAN, Justice.

In White v. Suncook Mills, 91 N.H. 92, 13 A.2d 729, the plaintiff sought to recover for personal injuries alleged to have been sustained because of the defendant's negligent maintenance of a structure in close proximity to a public highway. There was evidence that in using the public highway the plaintiff fell from a retaining wall at the top of a banking on the defendant's land, adjoining the highway. The question of the defendant's liability was considered 'upon the assumption that the retaining wall [was] erected * * * prior to the establishment of the highway.' Id., 91 N.H. at page 95, 13 A.2d at page 731. In setting aside an order of nonsuit, this court held that the evidence furnished 'an adequate basis for a conclusion that the defendant was at fault' 91 N.H. at page 94, 13 A.2d at page 731, upon the authority of Chickering v. Thompson, 76 N.H. 311, 82 A. 839, and the principle set forth in 2 Restatement of the Law, Torts, § 368, as follows: 'A possessor of land who creates or maintains thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact therewith while traveling with reasonable care upon the highway, is subject to liability for bodily harm thereby caused to them.' Maintenance of the retaining wall so close to the street after it became a public highway as to endanger travelers thereon was declared to be a public nuisance. Id., 91 N.H. at pages 96, 97, 13 A.2d at pages 732, 733.

The cases now before us are not distinguishable from White v. Suncook Mills, supra, and we consider it to be contolling. In the view of the evidence which the defendants consider most favorable to them, the easterly side line of the leased land upon which the cement areaway was located, was coterminous with the westerly sideline of the sidewalk. Although it appears to be undisputed that the step or 'drop off' was created by the action of the town in raising the level of the sidewalk, the defendants are not to be relieved of liability on that account. A 'new relationship between the defendant and the public was created and structures which had been lawfully maintained up to that time by the defendant upon its own land might, in view of the changed situation, take on the character of nuisances.' White v. Suncook Mills, supra, 91 N.H. at page 95, 13 A.2d at page 731. 'As against the defendant, the city had the right to make a level sidewalk, although by so doing it made precautions on the defendant's part necessary in order to prevent a nuisance.' City of Holyoke v. Hadley Water-Power Co., 174 Mass. 424, 54 N.E. 889, 890. See also, Hood v. City of Nashua, 91 N.H. 98, 13 A.2d 726. Language used in Shea v. Boston & M. R. R., 88 N.H. 462, 191 A. 650, relied upon by the defendants in these cases, which might be thought inconsistent with this view, is to be considered in the light of the peculiar facts of that case, as pointed out in the White case, 91 N.H. at page 97, 13 A.2d at page 732, and is not decisive here.

The defendants seek to distinguish the White case upon the ground that the risk in that case arose from a pre-existing 'excavation' or 'grease-pit' on land adjoining the public way, rather than from elevation of the way above the adjoining land; and again because the difference in the elevations involved in these cases was slight by comparison, so that 'the difference of degree becomes one of kind.' These differences cannot be considered to furnish a valid basis for distinction. In Jutras v. Satters, 96 N.H. 300, 75 A.2d 712, a difference of seven-eighths of an inch in the level of a sidewalk and that of a store entrance was held to furnish a basis for liability. The argument in the cases before us, that any danger which was presented resulted from the action of the town in raising the sidewalk and therefore the rule of White v. Suncook Mills should not apply, ignores the basis for the rule. In the White case the 'new relationship' between the parties arose when the highway was laid out beside the defendant's land. Similarly, in this case a new relationship arose when the walk already beside the defendants' land was elevated. In each instance the risk to travelers upon the public way arose from the action of the town. The nature of the action taken may not have been identical, but the obligation which was thereby cast upon the adjoining landowner is not to be distinguished.

The case of Abrahams v. Zisman, 293 Mass. 375, 199 N.E. 725, represents the peculiar Massachusetts rule. Lioni v. Marr, 320 Mass. 17, 67 N.E.2d 766, and cases cited. It is inconsistent with the established law of this jurisdiction and has been criticized on principle. Note 27 B.U.R. 256. The early case of Watson v. Webb, 28 Wash. 580, 68 P. 1044, stands no better as authority here.

The defendants' further argument that no duty should be imposed upon them 'to make safe a sidewalk on adjoining premises' misconceives the plaintiff's claim, since the plaintiff asserts no defect in the sidewalk. Her claim is not that the walk was improperly constructed but that the defendants failed to take reasonable precaution to avoid injury to her by reason of the difference in the levels of the walk maintained by the town and the cement areaway maintained by the defendants. In a similar way the defendants urge that even if they as lessees of the abutting land might have a duty to travelers upon the sidewalk, there was no evidence that the existence of the step from the walk involved any unreasonable risk of injury, citing Abell v. Amoskeag Realty Co., 95 N.H. 439, 441, 442, 65 A.2d 870. The step was not shown to be of improper height or construction, Berquist v. F. W. Woolworth Co., 91 N.H. 428, 21 A.2d 169, 726, it is said, 'and if expert testimony of a dangerous condition may not be essential * * * certainly some testimony is!'

The dangerous condition which the plaintiff's evidence tended to establish did not arise from the mere existence of the step. It lay in the juxtaposition of two different levels, alike in color, texture and material, so that the plaintiff 'figured it was level'; and in the fact that this condition occurred at the side of the walk away from the street, which south of the lot was bordered by land at a higher rather than a lower level. In short, the plaintiff complained not of a defective step, but of a deceptive and unexpected difference in levels. See Fisher v. Boston & M. R. R., 75 N.H. 184, 72 A. 212. This was evidence of a danger, Touhy v. Owl Drug Co., 6 Cal.App.2d 64, 44 P.2d 405, which the jury was competent to understand without expert testimony and from 'their own observation and experience of the facts of life.' Jutras v. Satters, 96 N.H. 300, 302, 75 A.2d 712, 713, and cases cited.

In the Jutras case, it is true, the plaintiff was an invitee, while in this case it was agreed that she was not. But any difference in the nature of the resulting duty does not affect the similarity of the risks which gave rise to the duty. In each case the evidence was sufficient to permit a jury to comprehend the risk involved.

Nor may the defendants avoid responsibility upon the supposition that the plaintiff was a trespasser, for it is 'well settled in...