St. Cyr v. Johnson, 3337.

• Citation: 27 A.2d 103
• Decision Date: 24 June 1942
• Docket Number: No. 3337.,3337.
• Parties: ST. CYR v. JOHNSON.
• Court: Supreme Court of New Hampshire

27 A.2d 103

ST. CYR

v. JOHNSON.

No. 3337.

Supreme Court of New Hampshire. Hillsborough.

June 24, 1942.

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

Action on the case by Frederic E. St. Cyr, administrator of the estate of Victor Beaudoin, against Grace W. Johnson, to recover for the death of Victor Beaudoin. The court entered a nonsuit, and the case is transferred on exceptions by plaintiff and defendant.

Judgment for defendant. Case, for negligence resulting in the death of the plaintiff's intestate. Trial by jury, with a view. At the end of the plaintiff's evidence, the court ordered a nonsuit, and the plaintiff excepted. There were also exceptions, but by the defendant, to the admission of evidence. Transferred by Connor, J. The facts appear in the opinion.

Frederic E. St. Cyr and Saidel, Lemelin, Hurley & Betley, all of Manchester, for plaintiff.

Sheehan & Phinney and Arthur A. Greene, Jr., all of Manchester, for defendant.

PAGE, Justice.

The decedent fell on a stairway in the defendant's building, September 15, 1940, at about nine in the evening, and died the next day as the result of a fractured skull suffered in the fall. The building on Elm Street, Manchester, consisted of stores on the ground floor and a rooming house above, whose tenant was Marie Benoit. The deceased was a foster son of the tenant, and lived with her. The duties owed by the landlord to the deceased were the same as those owed to the tenant. Towne v. Thompson, 68 N.H. 317, 319, 44 A. 492, 46 L.R.A. 748. The only question is whether there was error in the granting of the nonsuit on the ground that there was no breach of duty by the defendant, since the defendant was not in control of the premises.

The stairway on which the decedent fell was lighted, and the lighting was controlled by and paid for by the tenant. The stairway led from the street to the tenant's premises and was used for no other purpose than access thereto. The lease was by parol, from month to month, and no specific provision was made about maintenance or repairs. Interior papering and painting had always been done by the tenant at her own expense. On one occasion the tenant had placed rubber treads on the stairs.

Mrs. Benoit had occupied the premises since 1931. Whether, up to December, 1938, when her husband died, she and he were both tenants, or whether Mr. Benoit was sole tenant, is left in some doubt. From January 1, 1939, however, Mrs. Benoit became sole tenant. Prior...