Petroski v. Mulvanity

• Decision Date: 03 October 1916
• Citation: 78 N.H. 252,99 A. 88
• Parties: PETROSKI v. MULVANITY et al.
• Court: New Hampshire Supreme Court

99 A. 88

78 N.H. 252

PETROSKI

v. MULVANITY et al.

Supreme Court of New Hampshire. Hillsborough.

Oct. 3, 1916.

Transferred from Superior Court, Hillsborough County; Sawyer, Judge.

Action on the case by Melvina Petroski, by her next friend, William Petroski, against Albert Mulvanity and others. There was a verdict for defendants, and plaintiff excepts. Transferred from the superior court, and exceptions overruled.

CASE, for negligently causing personal injuries to the plaintiff in interest. Trial by jury and verdict for the defendants.

The defendants are the owners of a tenement house, having one tenement on the ground floor, and one on the second floor each having a separate entrance. Each tenement had also a finished room in the attic, but it was not shown whether they were reached by a common stairway or by separate passages. William Petroski was a tenant in the upstairs tenement. The injuries complained of were caused by the falling of the plaster over the bed where Melvina, a child of William, seven days old, lay with her mother. The plaintiff's evidence tended to show that the plaster was loosened by rain coming through a leaky roof.

The exceptions of the plaintiff which were to the charge of the court appear in the opinion.

John R. Spring and Henri A. Burque, both of Nashua, for plaintiff. Frank B. Clancy and Doyle & Lucier, all of Nashua, for defendants.

PLUMMER, J. The plaintiff claimed that the landlord retained control of the roof and of the unfinished space under the roof, but there was no evidence of any express reservation thereof in letting. The plaintiff excepted because the court did not send to the jury the question of the control of the roof, and instruct them that, if they found the roof was under the control of the defendants, the plaintiff could recover. It not appearing that the roof was under the control of the defendants, the court was justified in refusing to submit that question to the jury or give instructions in relation thereto.

In his charge to the jury the court said:

"It is suggested that one of the last witnesses on behalf of the plaintiff testified that the defendant Dr. Mulvanity stated that he would 'fix the premises all right.' If such is the testimony, no liability would occur in this action by reason of the failure to fix it all right, because that is a pure matter of contract, and this action is based upon the negligent performance of a legal duty imposed by law, rather than one that attaches by reason...