Pickford v. Abramson

• Decision Date: 07 October 1930
• Parties: PICKFORD v. ABRAMSON.
• Court: New Hampshire Supreme Court

152 A. 317

PICKFORD

v. ABRAMSON.

Supreme Court of New Hampshire. Coos.

Oct. 7, 1930.

Transferred from Superior Court, Coos County; Burque, Judge.

Case by Anne Pickford, administratrix, against Nathan Abramson for negligently causing the death of plaintiffs intestate. Verdict for plaintiff. Case transferred on exceptions to denial of motions for a nonsuit and for a directed verdict, and to a refusal to give requested instructions to the jury. Exceptions overruled.

Edmund Sullivan, F. Maurice La Force, and Crawford I). Hening, all of Berlin, for plaintiff.

Robert Rich and Ira W. Thayer, both of Berlin, for defendant.

PEASLEE, C. J.

The intestate, Leo Pickford, was killed by falling down a flight of unlighted basement stairs, in the nighttime. The defendant is the owner of the premises, consisting of a block situated on the southerly side of Main street in Berlin. The upper stories are used as a hotel or lodging house, known as the "Commercial House." The entrance door to the stairway leading thereto and one leading downstairs to a basement are side by side. The door leading upstairs is set back from the street line thirty-six inches, and that leading to the basement twenty-nine inches. The vestibules are separated by a partition, are on a common level, and are reached by a step set flush to the street line and running across the entire entrance. The doors are alike in design and construction. Over the upstairs entrance and ten or twelve feet above the sidewalk there was a transparent sign, projecting over a part of the sidewalk, and lettered "Commercial House" on either side.

The basement door was equipped with an ordinary bolt lock. There was evidence that it was always left unlocked; that the tenant of the hotel had to use it as an entrance to the basement where the heating apparatus was located; and that aside from this the defendant had full control of the basement and its entrance, and made more or less use of them. Before the accident to the plaintiff's decedent, several people had mistaken the basement entrance for that to the hotel, and two or three of them had fallen down the basement stairs. There was evidence that the defendant knew of these occurrences, that the tenant of the hotel asked for a key so that the basement door might be kept locked, and that the defendant promised to furnish one, but did not do so before the accident.

There was sufficient evidence of the defendant's fault. The situation created and maintained by him could well be found to constitute an invitation to enter a dangerous trap. What amounts to an invitation by a landowner to enter upon his premises received extended consideration in Hobbs v Company, 75 N. H. 73, 80 et seq., 70 A. 1082, 18 L. R. A. (N. S.) 939, and the rule laid down in Sweeny v. Railroad, 10 Allen (Mass.) 368, 87 Am. Dec. 644, was approved and followed. The substance of that rule is that if the landowner "directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use." Id. 10 Allen (Mass.) 374, 87 Am. Dec. 644. The implied "invitation imposed a duty to use due care to have the place safe as far as the [landowner] ought to have understood that the public would understand that the invitation extended." Frear v. Company, 83 N. H. 64, 68, 139 A. 86, 89, 61 A. L. R. 1280.

The proximity and similarity of the two doors was such that it could well be found that mistaking one for the other was something to be anticipated and guarded against. And when there is added to that the evidence of what experience had demonstrated, to the defendant's knowledge, there was abundant cause to find the defendant to be at fault in not locking the basement door, or taking other means to remedy the deceptive and dangerous situation.

Cases cited and relied upon by the defendant are not in point. They relate to the liability of a landlord to his tenant's invitees for defects in the leased premises. The doorway here in question was not leased. Such right as the lessee had there was only for passing to his heating plant. In all other respects the defendant had control thereof. The basis of recovery here is not that the tenant invited the decedent to use the door, but that the property owner in effect represented that this door was the one the tenant invited the public to use. The invitation was held out "by the party sought to be charged." Elliott v. Pray, 10 Allen (Mass.) 378, 384, 87 Am. Dec. 653. The invitation was to exercise a right, "in the enjoyment of which one may expect to be protected. The liability of such a case should be coextensive with the inducement or implied invitation." Plummer v. Dill, 156 Mass. 426, 430, 31 N. E. 128, 130, 32 Am. St. Rep. 463.

It is also claimed that there was conclusive...