Panagoulis v. Philip Morris & Co.

• Decision Date: 03 October 1949
• Citation: Panagoulis v. Philip Morris & Co., 95 N.H. 524, 68 A.2d 672 (N.H. 1949)
• Court: New Hampshire Supreme Court
• Parties: PANAGOULIS v. PHILIP MORRIS & CO.

68 A.2d 672

PANAGOULIS

v.PHILIP MORRIS & CO.

Supreme Court of New Hampshire.

Oct. 3, 1949.

Mary M. Panagoulis brought an action in case against Philip Morris & Co. for injuries sustained in a fall on a stairway in defendant's store.

The trial court, Westcott, J., granted defendant's motion for nonsuit at close of plaintiff's evidence, and transferred the cause on plaintiff's exceptions.

The Supreme Court, Blandin, J., discussed exceptions to exclusion of testimony of prior accidents, and to a refusal to allow evidence of changes between time of the accident and a view by the jury.The Court ordered a new trial and held that whether defendant was negligent in disregarding customary construction standards and whether such neglect was the cause of the fall were questions for the jury.

Case, for negligence to recover for injuries resulting to the plaintiff from a fall on December 22, 1947 on a stairway in the defendant's store located at 139 Main Street in Nashua.Trial by jury after a view.At the close of the plaintiff's evidence the defendant's motion for a nonsuit was granted subject to exception.During the trial the plaintiff also excepted to the exclusion of certain evidence.Transferred by Wescott, J.Other facts appear in the opinion.

Morris D. Stein, Nashua, for plaintiff.

Alvin A. Lucier and Normand R. Pelletier, Nashua, for defendant.

BLANDIN, Justice.

The crux of this case is whether reasonable men could find that the plaintiff would not have fallen down the defendant's stairs except for faulty construction of the handrail.We believe they could and therefore the case should have been submitted to the jury.Sayfie v. Gordon, 95 N.H. 182, 59 A.2d 483.Taking the evidence most favorable to the plaintiff, Shimkus v. Caesar, 95 N.H. 286, 62 A.2d 728;Chase v. Draper Corporation, N.H., 66 A.2d 588, we find the plaintiff testified in part as follows:

‘When I went to the landing of the stairs, I went to step down, As I went to step down, I went to get the railing.I missed and went head-first downstairs.It seemed my foot slid over the stair tread.I reached for the railing, but it seems I just couldn't get hold of it, it seemed so low, and I just went down the whole flight of stairs.* * * If I could have gotten hold of that railing, I don't think I would have fallen.* * * I know it was a low railing because I am not a very tall person, and it seemed to throw me off balance when I reached for it and I slipped.* * * ‘When I reached for the rail it seemed as though I couldn't find the rail’.* * * That rail was low, because when I reached for it, at that time the rail was not there for me to grab.'

It appears the standard height of such rails was between 30 and 32 inches.In comparing the difference in height between the defendant's rail at the time she fell and the one around the witness stand where the plaintiff was testifying and which was 31 3/4 inches high she said: ‘the one I reached for was much lower.I can tell when I reach for this rail that the rail in the store was much lower than this rail.* * * This one I can reach very easily.’

The jury observed her while she was giving this testimony and could judge the ease with which she reached the standard rail around the witness stand.Upon all the evidence they could find the defendant was negligent in disregarding customary construction standards.Saucier v. New Hampshire Spinning Mills, 72 N.H. 292, 295, 56 A. 545;King v. Gardiner, Beardsell & Co., 76 N.H. 442, 83 A. 806;Wilson v. Manchester Sav. Bank, 95 N.H. 113, 58 A.2d 745.They could find also that this disregard was the cause of her fall.If there were other contributing causes not due to the plaintiff's negligence, which is not in issue, this does not relieve the defendant.Wilson v. Manchester Sav. Bank, supra, 95 N.H. 115, 58 A.2d 745, and cases cited.

Since they will probably arise at the next trial we now consider the plaintiff's exceptions to the exclusion of testimony of prior accidents and to the refusal of the Court to allow evidence of changes in the defendant's handrail at the store between the time of the accident and the view.We find no abuse of the Court's discretion in excluding testimony as to the other accidents in the absence of any offer by the plaintiff to show that they happened under similar circumstances.Rosan v. Raudonis, 87 N.H. 29, 30, 173 A. 379;Lovett v. Manchester St. Ry., 85 N.H. 345, 352, 159 A. 132, and cases cited;Janus v. Akstin, 91 N.H....