Saad v. Pappageorge

• Decision Date: 06 April 1926
• Citation: 133 A. 24
• Parties: SAAD v. PAPPAGEORGE et al.
• Court: New Hampshire Supreme Court

133 A. 24

SAAD

v. PAPPAGEORGE et al.

Supreme Court of New Hampshire. Hillsborough.

April 6, 1926.

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

Case by Thomas Seibaha Saad, administrator, against Vassel Pappageorge and others, for negligently causing death of plaintiff's intestate. Verdict for plaintiff. Transferred on defendants' exception to denial of their motion for directed verdict. Exceptions overruled.

Maurice F. Deviue and John E. Tobin, both of Manchester, for plaintiff.

Warren, Howe & Wilson and Charles B. McLaughlin, all of Manchester, for defendants.

ALLEN, J. The intestate, a child between 3 and 4 years of age, lived with his family in a tenement on the third floor of the defendants' building. There were other tenements on the same floor, and access was from a common stairway on the outside of the building. The stairway was of wooden construction. An outside rail of ordinary height extended from upright supports at the top and foot of the stairway, and there was a board parallel with the rail, about midway between it and the treads of the stairway, and nailed onto the supports. The roof of the building extended over the stairway, which was otherwise exposed as an outside attachment. The building was about 12 years old, and no changes in construction had been made.

The intestate fell from the outer side of the stairway to the ground and was killed. No one saw him on the stairs. After it happened, the board was found broken at its upper end transversely from its lower connection, with its upper support to its upper side, and pushed outward. Pieces broken off were found on the stairway.

The intestate's mother testified that prior to the accident she complained to one of the defendants about the unsafe condition of the board. It shook and was split and marked. The board had been painted. With consideration for the witness' limited ability to express herself in our language, the marking might be found to be of cracks showing on the surface of the board and making what was called the split. A witness for the defendants testified that a child of the intestate's age could not break the board in the manner it was found broken. There was no direct evidence that before the accident the board was broken to the extent of separation into pieces.

Considering this evidence and situation, and the age and exposure to the weather of the board, a jury might properly find that the breaking of the board, and the consequent fall of the Intestate, were caused by its unsuitable condition, of which the defendants knew or should have known. The application of such pressure as the intestate exerted against the board was the occasion, and not the cause, of its break. But the condition of the board might be found to be such cause. The inference that the shaking of the board was due to proper causes is not the only one which may be drawn from the evidence.

That the board may have been broken before the intestate fell through it, but not long enough before for the defendants to be charged with notice of the break, does not prove their right to a verdict. If such a situation might be found to have existed, the defendants might then be found chargeable with notice of weakness in the board making it easy to break, and thus make them responsible for the break. The possibility that it was sound when broken is not enough to meet a probability that it was unsound.

The defendants further urge that the intestate was as probably engaged in an unauthorized use of the stairway as a proper use when the board gave way. The intestate's age precludes a finding of negligent use (Dorr v. Railway, 80 A. 336, 76...