Tremblay v. Donnelly

• Decision Date: 30 November 1961
• Parties: Alice TREMBLAY v. John J. DONNELLY et al.
• Court: New Hampshire Supreme Court

Page 391

175 A.2d 391

103 N.H. 498

Alice TREMBLAY v. John J. DONNELLY et al.

Supreme Court of New Hampshire.

Argued Oct. 3, 1961.

Decided Nov. 30, 1961.

Craig & Craig and Arthur J. Costakis, Manchester, for plaintiff.

Booth, Wadleigh, Langdell, Starr & Peters, Philip G. Peters, Manchester, for defendants.

DUNCAN, Justice.

The plaintiff, a widow aged sixty-five when the accident occurred, was the only witness to the events which gave rise to this action. From the plaintiff's evidence the following facts could be found: As she entered the building at the rear, she slipped and fell upon a pear on the porch. It was dark at the time, and there was no light by which the porch could be illuminated. A pear tree on adjoining premises owned by a third party was so situated with reference to the porch that pears would fall upon the pitch roof of an adjoining barn and be deflected to the defendants' porch near the rear entrance.

The accident occurred upon a Saturday evening at about 9:00 P. M. The plaintiff did not see the pear, but felt it with her hand when she fell. Her left ankle was fractured so that the bone projected through the flesh. She was unable to get to her feet, but opened the door and sat upon the bottom stair inside it. She called for help, but no one responded and no one went by. She remained upon the step, expecting the tenant of the first floor rear apartment to return from work shortly after 11:00 P. M.; but when he did not, she crawled on her hands and knees to the second floor. There she was unable to open her apartment door so she remained on the stairway landing until daybreak, when she worked her way back down the stairs and finally attracted the attention of a passerby. Assistance was summoned and she was taken to the hospital.

It was not disputed that she suffered a severe compound fracture of her left ankle with displacement of the foot and 'a degree [of shock] associated with this type of injury.' She also suffered some loss of blood as evidenced by 'a trail of blood the entire length of the staircase' and on the top landing leading to a porch door.

The defendants contend that a nonsuit or directed verdict should have been granted, because there was no evidence that they had notice that the pear was upon the rear porch in season for them to have removed it. Jackel v. Brockelman Brothers, 91 N.H. 453, 21 A.2d 155; Partin v. Great A. & P. Tea Co., 102 N.H. 62, 64, 149 A.2d 860. Since there was evidence however from which the jury could find that the defendants knew or should have known that pears did fall from the tree upon the porch and could have taken preventive action, it could likewise find that reasonable care required that they should have taken such action. Papakalos v. Shaka, 91 N.H. 265, 18 A.2d 377; Black v. Fiandaca, 98 N.H. 33, 35, 93 A.2d 663; Restatement of the Law: Torts, § 360. We are likewise satisfied that the evidence did not compel a finding of contributory negligence on the part of the plaintiff in failing to see the pear. Papakalos v. Shaka, supra; Cartier v. F. M. Hoyt Shoe Corp., 82 N.H. 263, 265, 29 A.2d 423; Brosor v. Sullivan, 99 N.H. 305, 308, 109 A.2d 862.

The defendants strenously urge that they were prejudiced by the action of the Trial Court in permitting testimony that the porch was nulighted to be received in evidence over their objection and exception. The plaintiff does not question the proposition that under the law of this jurisdiction a landlord is under no duty to provide lights for common passageways retained in his control, in the absence of agreement to do so and in the absence of 'special dangers * * * because of defective or unusual construction.' Lengas v. Resnick, 87 N.H. 161, 162, 175 A. 824. See also, Hawes v. Chase, 84 N.H. 170, 147 A. 748. In reliance upon this principle the defendants objected to inquiry as to whether there were 'any lights on the porch,' and whether it was 'very dark on the porch at night.'

Early in the trial the Court properly declined to exclude such evidence, because of its bearing upon the question of contributory negligence. Following denial of the defendants' motion for a nonsuit, the Court stated: 'If there should be sufficient evidence to submit to the jury defective construction of the premises, then I would submit the issue of lighting * * * if the evidence should come in from the defendant, then I would submit the issue * * *.' Finally however, in submitting the case to the jury, the Court instructed them that 'there is no duty on the part of the landlord such as these defendants here to light a common passageway or porch such as the one on which the plaintiff claims she fell. You are not to consider lack of lighting as an issue in this case.'

The defendants contend that this instruction was inadequate to counteract the prejudice to them arising out of repeated references to lack of light which were permitted to remain in evidence during the entire trial. James Stewart & Co. v. Newby, 4 Cir., 266 F. 287, cited in Emerson v. Cobb, 88 N.H. 199, 201, 186 A. 12.

The evidence relating to light or lack of it was plainly competent both upon the issue of the plaintiff's contributory negligence, and as evidence of a circumstance to be taken into account in determining the issue of defendant's negligence in failing to prevent pears from falling upon the porch. While the defendants might properly object to use of the evidence as proof of their negligence in failing to provide a light, the evidence was not incompetent, and they made no effort to obtain instructions limiting its use. Smith v. Boston & M. R. R., 87 N.H. 246, 254, 177 A. 729. In this situation it was not error to receive the evidence.

However better practice requires that the Trial Court exclude or limit the use of evidence that a landlord has not provided adequate lighting, unless there is evidence of special danger from defective or unusual construction (Lengas v. Resnick, supra) or assurance by counsel that such evidence is to be supplied. To the extent that the defendants did not waive their objection by failing to request a limiting instruction, any prejudice inherent in receipt of the evidence was cured by the instruction withdrawing from the jury the issue of the defendants' failure to furnish lights. Sirois v. Laquerre, 103 N.H. 113, 117, 165 A.2d 587.

The defendants contend that it was error to deny their motion to set aside the verdict upon the ground that the plaintiff 'committed perjury in her testimony regarding her drinking habits and her social habits.'

In the course of the trial the plaintiff testified on direct examination as follows:

'Now, you say that you got up * * * around 7:00 o'clock that morning? A. Yes.

'Q. Did you visit any clubs? A. No.

'Q. Do you drink? A. No.

'Q. Did you drink that day? A. No.'

On cross-examination, she testified:

'Q. You don't drink, do you? A. No.

'Q. * * * you wouldn't go out to any club dancing or anything? A. I did with my husband when my husband was living.

'Q. Do you now? A. No I don't * * *.

'Q. You don't like beer? A. Well if I happen to be with somebody sometime, but I don't care for it. * * *

'Q. You hardly ever go out at night? A. No. I don't * * *.

'Q. Doesn't Mr. O' Reilly come to see you? A. Sometimes I see him about every four or five weeks.

'Q. The reason I am asking you, Mam, is that you say * * * you don't like beer and you only drink it once in a while? A. Very seldom.

'Q. Therefore there would be no reason * * * you wouldn't be coming home at anytime feeling the effect of drinking would you? A. No.'

A witness called by the defendant at the trial testified that prior to the day of...