Rowe v. Ayer & Williams, Inc.

• Decision Date: 07 February 1933
• Citation: 164 A. 761
• Parties: ROWE v. AYER & WILLIAMS, Inc., et al.
• Court: New Hampshire Supreme Court

164 A. 761

ROWE

v. AYER & WILLIAMS, Inc., et al.

Supreme Court of New Hampshire. Rockingham.

Feb. 7, 1933.

Action by Arthur W. Rowe against Ayer & Williams, Inc., and the F. M. Hoyt Shoe Company. A nonsuit having been ordered as to the last-named defendant, plaintiff brings exceptions.

New trial.

Case for negligence by an employee of the defendant, Ayer & Williams, Inc., to recover for personal injuries received while using a fire escape to enter the shoe factory where he was employed. The defendant F. M. Hoyt Shoe Company was the owner of the building, and had leased the three upper floors to the plaintiff's employer, reserving the basement for its own use. After a jury had been impaneled, the defendant, Ayer & Williams, Inc., paid the plaintiff $1,350 upon his covenant not to sue it. The case then proceeded to trial against the defendant F. M. Hoyt Shoe Company, and at the close of plaintiff's evidence a nonsuit was ordered subject to the plaintiff's exception.

The fire escape in question was located at the rear (east) end of the building, and possession and control of it were retained by the Hoyt Company. It was the custom of the workmen to park their cars in a large open space on the north side of the factory, and to enter by the fire escape. On December 24, 1928, plaintiff, while entering the factory in this way, was severely injured when one of the floor gratings became loose, and he fell to the ground into a hole under the fire escape. No provision had been made for holding the gratings in place.

Other facts appear in the opinion.

William H. Sleeper and John W. Perkins, both of Exeter, for plaintiff.

Upton & Donovan, of Concord, for Ayer & Williams, Inc.

Hughes & Burns, of Dover, for F. M. Hoyt Shoe Company.

BRANCH, Justice.

The fire escape here in question was appurtenant to the portion of the factory building leased by the defendant to Ayer & Williams Inc., and obviously necessary to the safe occupancy thereof. Therefore, although the defendant retained control of it, the lessees and their employees were entitled to make use of it at reasonable times and for purposes within the contemplation of the parties. The legal principle here involved has been concisely stated as follows:

"(1) A lessee of premises is privileged to be at reasonable times and in a reasonable manner on those portions of the premises retained in the possession of the lessor which are maintained or held open by him for the common use of his tenants or for the particular use of the lessee.

"(2) Persons entering the premises in the right of the tenant have the same privilege as is stated in subsection (1)." Am. Law Inst. Restatement of Torts, Tent. Draft No. 9, s. 1034.

This principle is implicit in many cases which have touched upon this phase of the law of landlord and tenant. Thompson v. Resnik, 85 N. H. 413, 159 A. 355; Pickford v. Aaramson, 84 N. H. 446, 152 A. 317; Burelle v. Pienkofski, 84 N. H. 200, 148 A. 24; Gobrecht v. Beckwith, 82 N. H. 415, 135 A. 20, 52 A. L. R. 858; Saad v. Papageorge, 82 N. H. 294, 133 A. 24.

With reference to those portions of his property which he provides for the use of his tenants, but retains within his own possession and control, it is the duty of a landlord "to use ordinary care to keep such portions in safe condition," and he is liable to any person legally entitled to be upon them in the right of the tenant for injuries resulting from his failure to do so. Burelle v. Pienkofski, supra, and cases cited. Such is the prevailing rule in this country. Am. Law Inst. Restatement of Torts, Tent. Draft No. 4, s. 230; 16 R. C. L. Tit. L. & T. s. 557.

The following statement of this court in the case of Colby v. Treisman Bros., 85 N. H. 19, 153 A. 409, 470, is applicable with slight variation to the present situation: "The defendant in the present case, having invited the plaintiff to enter its building for business purposes, was required to keep in reasonably safe condition such portion of the premises as it ought reasonably to have foreseen he would be likely to occupy in performing his work. True v. [Meredith Creamery, 72 N. H. 154, 55 A. 893; Stevens v. [United Gas & Electric] Company, 73 N. H. 159, 60 A. 848, 70 L. R. A. 119; Hobbs v. [George W. Blanchard & Sons] Company, 75 N. H. 73, 81, 70 A. 1082, 18 L. R. A. (N. S.) 939; Nolette v. [Manchester Rendering] Company, 81 N. H. 222, 124 A. 550; Derosier v. [New England Telephone & Telegraph] Company, 81 N. H. 451, 466, 467, 130 A. 145."

The defendant does not seriously question the soundness of these principles, but asserts that they are not decisive of the case, because "The plaintiff was making an unauthorized use of defendant's property in the place where he was injured and, therefore, was a trespasser." The answer to this argument is that the evidence presented by the plaintiff, plus his offer of proof which was erroneously excluded and which is hereinafter considered, would amply justify a finding that the use of the fire escape as a common avenue of entrance to and exit from the factory by the employees of the lessee was known to and permitted without objection by the defendant. The evidence disclosed that the fire escape had been used in this way habitually by a large number of men, for a considerable period of time, with no effort at concealment. During all this time the defendant occupied and used the basement of the same building and an adjoining factory building, from which the course usually taken by the plaintiff and his fellow workmen was plainly visible, although the fire escape itself was not. There was also evidence that the defendant's general manager customarily parked his car in a place from which the fire escape was easily visible, and was observed there at times when, if he had looked, he might have seen "in plain sight a whole procession coming out of there and getting into their cars."...