Pridham v. Cash & Carry Bldg. Center, Inc.

Decision Date29 May 1976
Docket NumberNo. 7191,7191
Citation116 N.H. 292,359 A.2d 193
PartiesPhilip R. PRIDHAM, Administrator Estate of Herbert Pridham v. CASH & CARRY BUILDING CENTER, INC.
CourtNew Hampshire Supreme Court

Shaines, Madrigan & McEachern and Gregory D. Robbins, Portmouth, for plaintiff.

Charles F. Hartnett, Dover, for defendant.

LAMPRON, Justice.

Action to recover for the wrongful death of Herbert Pridham arising out of events on November 1, 1971, which included a fall on defendant Cash & Carry's premises in Newington and a subsequent accident in Portsmouth involving the ambulance transporting him to a hospital because of the injuries suffered in the fall. Trial by jury, which included a view, resulted in a verdict for the plaintiff in the amount of $50,000. This verdict was reduced by $10,000, the amount of a settlement during trial of two companion cases, one against the town of Newington, owner of the ambulance, the other against the estate of its operator.

Defendant Cash & Carry preserved its exceptions to the denial of its motions for nonsuit and directed verdict; to rulings on the withdrawal of issues; to rulings in connection with the admission and exclusion of evidence; to the denial of its motions for mistrial; to the charge as given and to the denial of certain of its requests for instruction. These exceptions transferred by Morris, J., are the issues on this appeal.

Cash & Carry Building Center was in the retail business of selling lumber and building supplies in the manner indicated by its name. On the day of the accident plaintiff bought and paid for paneling and other supplies and he and the salesman went to the rear of the store where the paneling was kept. This was a large show room with two large garage-type doors at each end. All four of these doors were then open. It was windy outside and in the show room. The paneling was stored in display racks in an upright position with a string or rope tied around it.

The first sheet in a rack was a cover sheet used for display purposes and to keep the inside panels from being marred. Two of defendant's employees at that time testified that the purpose of the rope was to keep the sheets of paneling from falling and that it was a safety policy of the defendant to tie the rope around them for that purpose. There were about 50 sheets of vinyl paneling 4 by 8 feet each on the rack containing the type bought by Pridham. Each sheet was 3/16 of an inch thick and weighed about 8 to 10 pounds for a total weight of 400 to 500 pounds.

The clerk walked up to this rack with Pridham standing directly behind him. Without saying anything to him in the nature of a warning or otherwise, the clerk untied the rope and picked up the cover sheet and moved it to one side. The remaining sheets of panel began to fall, struck Pridham, and he was knocked off his feet and thrown to the concrete floor with all the paneling on top of him. The panels closest to him broke and splintered. Pridham's heavy leather belt was broken in the process. When the panels were removed, he lay flat on his back on the floor, his head in a pool of blood.

An ambulance was called. The responding medical officer, a veterinarian, testified that the victim was conscious but was unable to move his legs or his toes when asked to do so. He was placed on an orthopedic stretcher which was in turn placed upon the ambulance cot and carried into the vehicle. En route to the Portsmouth hospital, the driver, Lawrence Volz, apparently suffered a heart attack. This caused the vehicle to swerve from the road and strike a tree. The cot was pushed forward through the glass partition separating the driver compartment from the rear of the ambulance. Pridham was pronounced dead some time later that same day. There was testimony that his death resulted from the injuries he received in the accident at Cash & Carry.

The parties agreed that Pridham was a business invitee on Cash & Carry's premises. This relationship imposed on the defendant a duty to use reasonable care not to injury the deceased by negligent activities by it or its employees. Furthermore there was a duty to warn the invitee of dangerous conditions of which he did not know and to take reasonable precautions to protect him against foreseeable dangers arising out of the arrangements or use of the premises. These duties extended to all parts of the premises in which a business invitee may reasonably be expected. Jutras v. Satters, 96 N.H. 300, 75 A.2d 712 (1950); W. Prosser, Law of Torts & 61, at 392, 393 (4th ed. 1971). The actions of the clerk waiting on Pridham previously recited were sufficient evidence of negligence to submit that issue to the jury. Partin v. A & P Tea Co., 102 N.H. 62, 149 A.2d 860 (1959).

There was evidence that after the clerk untied the rope holding back the paneling, that Pridham stepped on the 'toe-kick', a two by six board placed at the base of the rack to hold the panels in place, and that his hands were toward the top of them. The evidence was in conflict as to whether by this move Pridham intended to examine the paneling or was trying to stop the sheets from falling. In any event the evidence as a whole would not compel a conclusion that he was negligent as a matter of law. Consequently the trial court properly denied Cash & Carry's motions for nonsuit and a directed verdict. Stevens v. Bow Mills Methodist Church, 111 N.H. 340, 283 A.2d 488 (1971); Dubreuil v. Dubreuil, 107 N.H. 519, 229 A.2d 338 (1967).

Defendant's exception to the failure of the court to withdraw the issue of improper storing of the paneling is overruled. A witness to the accident testifying about a previous experience stated that if the panel is piled too straight, the removal of the first sheet 'would pull the others with it'. In a deposition taken before trial, the clerk who waited on the deceased testified that he was instructed not to place the paneling straight because it would fall the minute the rope was taken off. He testified at the trial that when he took the rope off the panel fell. This was sufficient evidence to submit this issue to the jury.

Defendant also maintains that the trial court committed reversible errors in its rulings on evidence. The first is that the plaintiff was improperly permitted in violation of RSA 516:24 to impeach two former employees of the defendant called by him. Although the statute only permits impeachment of parties, it in no way prohibits a finding by the trial court that because of 'hostility of the witness or other causes' such cross-examination of a witness who is not a party can be permitted. Gerrish v. Gerrish, 63 N.H. 128 (1884) see, 3 J. Wigmore, Evidence § 901 (Chadbourn rev. 1970). We find no abuse of discretion under the facts of this case. Defendant also maintains that the trial court improperly permitted the admission of a prior inconsistent statement made to defendant's manager by a former employee who was a witness called by the plaintiff pertaining to what Pridham did when the panel began to fall. This was proper. See Whitman v. Morey, 63 N.H. 448, 456, 2 A. 899, 904-05 (1885); 3 J. Wigmore, Evidence § 905 (Chadbourn rev. 1970).

We hold also that the trial court properly permitted a veterinarian, who responded with the ambulance as its medical officer, to give his opinion as to the condition of Pridham at the time. On the testimony presented regarding his experience and training the trial court could properly conclude that his testimony would be helpful to the jury. Walker v. Walker,106 N.H. 282, 284-85, 210 A.2d 468, 472 (1965). Finally we find no error in the court's admitting in evidence on the issue of damages that there was no mortgage on decedent's home; the amount of pension and dividends which decedent was receiving in accordance with his income tax returns; and the value of his pension testified to by an expert witness possessed with evidence as to its amount and duration.

Late in the presentation of plaintiff's case a settlement was reached with the town of Newington and the driver of its ambulance, originally codefendants with Cash & Carry. Defendant claims that a mistrial should have been declared as this...

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13 cases
  • State v. Breest
    • United States
    • New Hampshire Supreme Court
    • December 17, 1976
    ...Susan's death and on the injuries revealed by the autopsy, would be of help of the jury. Pridham v. Cash & Carry Building Center, Inc., 116 N.H. 292, 296, 359 A.2d 193, 198 (1976). E. LATE FILING OF REPORTS BY POLICE OFFICERS. Officer McLaughlin's report of activities on February 27, 1971, ......
  • Mooney v. United States
    • United States
    • U.S. District Court — District of New Hampshire
    • October 18, 1985
    ...of reasonable care should know. Partin v. A & P Tea Co., 102 N.H. 62, 63-64, 149 A.2d 860 (1959). See Pridham v. Cash and Carry Building Center, Inc., 116 N.H. 292, 359 A.2d 193 (1976). The United States is liable in a negligence action in the same manner and to the same extent as a private......
  • Rallis v. Demoulas Super Mkts., Inc.
    • United States
    • New Hampshire Supreme Court
    • July 10, 2009
    ...to protect them against foreseeable dangers arising out of the arrangements or use of the premises. Pridham v. Cash & Carry Bldg. Center, Inc., 116 N.H. 292, 294–95, 359 A.2d 193 (1976). Accordingly, under New Hampshire law, a premises owner is subject to liability for harm caused to entran......
  • Pray v. Narragansett Imp. Co.
    • United States
    • Rhode Island Supreme Court
    • September 3, 1981
    ...Tuten, 137 Ga.App. 188, 223 S.E.2d 237 (1976); Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241 (1960); Pridham v. Cash & Carry Building Center, Inc., 116 N.H. 292, 359 A.2d 193 (1976); Gatenby v. Altoona Aviation Corp., 277 F.Supp. 1011 (W.D.Pa.1968); and see generally annot., 81 A.L.R.2d ......
  • Request a trial to view additional results
3 books & journal articles
  • The Small Personal Injury Practice
    • United States
    • James Publishing Practical Law Books Archive Maximizing Damages in Small Personal Injury Cases - 2017 Contents
    • August 19, 2017
    ...on store shelves. Matthews v. Schwegmann Giant Supermarkets, Inc. , 559 So. 2d 488 (La. 1990); Pridham v. Cash & Carry Bldg. Ctr., Inc. , 359 A.2d 193 (N.H. 1976) (a building supply store customer struck by falling sheets of paneling that had been stacked in an unstable position and tied wi......
  • The small personal injury practice
    • United States
    • James Publishing Practical Law Books Maximizing Damages in Small Personal Injury Cases
    • May 1, 2021
    ...on store shelves. Matthews v. Schwegmann Giant Supermarkets, Inc. , 559 So. 2d 488 (La. 1990); Pridham v. Cash & Carry Bldg. Ctr., Inc. , 359 A.2d 193 (N.H. 1976) (a building supply store customer struck by falling sheets of paneling that had been stacked in an unstable position and tied wi......
  • The Small Personal Injury Practice
    • United States
    • James Publishing Practical Law Books Archive Maximizing Damages in Small Personal Injury Cases - 2014 Contents
    • August 19, 2014
    ...on store shelves. Matthews v. Schwegmann Giant Supermarkets, Inc. , 559 So. 2d 488 (La. 1990); Pridham v. Cash & Carry Bldg. Ctr., Inc. , 359 A.2d 193 (N.H. 1976) (a building supply store customer struck by falling sheets of paneling that had been stacked in an unstable position and tied wi......

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