White v. Suncook Mills

• Decision Date: 04 June 1940
• Citation: 13 A.2d 729
• Parties: WHITE v. SUNCOOK MILLS.
• Court: New Hampshire Supreme Court

13 A.2d 729

WHITE

v. SUNCOOK MILLS.

Supreme Court of New Hampshire. Rockingham.

June 4, 1940.

Exceptions from Superior Court, Rockingham County; Johnston, Judge.

Action by Daisy F. White against Suncook Mills for personal injuries. At the close of plaintiff's evidence, defendant's motion for a nonsuit was granted, and plaintiff excepted.

New trial.

Case to recover damages for personal injuries alleged to have been sustained by the plaintiff as a result of the defendant's negligent maintenance of a structure in close proximity to a highway in the village of Suncook. At the close of the plaintiff's evidence, the defendant's motion for a nonsuit was granted by Johnston, J. and the plaintiff excepted.

The facts are stated in the opinion.

William H. Sleeper, of Exeter, for plaintiff.

Alvin A. Lucier, of Nashua, for defendant.

BRANCH, Justice.

There was evidence tending to prove the following facts: The defendant is the owner of a parcel of land in the village of Suncook, situated between a public highway known as Depot Street, and the Suncook River. This land slopes sharply down to the river and at the point in question a retaining wall some twenty-five feet in length and of unspecified height had been erected at the top of the bank. There had also been erected at this point a structure which is referred to by the plaintiff, somewhat inaccurately, as a "grease pit". This structure consisted of two, twelve-inch I beams running toward the river, supported at one end by the retaining wall and at the other by a framework of timber. The beams being laid on their sides thus furnished two channels sufficient to support and guide the wheels of an automobile when driven upon them and the slope of the bank was such that when an automobile was driven onto this structure, work could be done upon it from below. To facilitate such work some kind of a wooden floor had been built below the beams. The ends of the beams on top of the wall were embedded in a concrete block and although the evidence as to the precise limits of the highway was not wholly convincing, it might be found that this block extended to the very edge of the highway as laid out by the selectmen. The northerly edge of the traveled part of the highway as used by vehicles was, however, some twelve or fourteen feet from the edge of the cement block and through this space ran a cinder path which has been replaced since the accident by a cement sidewalk. The space between the roadway and the defendant's retaining wall was frequently used as a parking place, especially at night when large numbers of people were attending a neighboring theatre.

Depot Street was laid out as a public highway by the selectmen of Allenstown in 1910. It did not clearly appear when or by whom the retaining wall was built or the rest of the structure above described erected. It is not a necessary conclusion from the present record that the beams above mentioned were placed in position at the time the retaining wall was constructed. At the time of the occurrences hereinafter described there was a building, since destroyed, standing upon the defendant's land immediately to the east of the so-called grease pit, and to the corner of this building a gate had been attached in such a way that it might be swung in front of the space between the two beams and thus prevent persons from entering upon or falling between them. This gate, at the time of the accident, was out of repair and there was evidence that it had not been in use for more than two years before.

On October 1, 1937, the plaintiff came to Suncook for the purpose of attending a theatrical production at the theatre above referred to. She came in an automobile driven by one of her daughters and was accompanied by another daughter, the daughter's husband and their children. The plaintiff sat with the driver on the front seat of the car which was of the type known as a two-door coach. The plaintiff's daughter drove the car into Depot Street for the purpose of finding a parking place and was directed by a police officer to park opposite the bank wall above described, from which position another car had just been driven away. The driver accordingly parked the car between the roadway and the bank wall and the plaintiff alighted on the right-hand side between the car and the wall. The lights of the car were extinguished as soon as it stopped and the occupants of the car were, therefore, forced to get out in the dark. In regard to the subsequent occurrences, the plaintiff testified as follows: "Q. And what happened when your car was parked? A. Well, she switched off the lights and she started to get out on one side and I was getting out of the other side to let my other daughter and husband get out. Of course I took hold of the door and swung it back and as I did so I let go of the door for them to come out, I stepped back maybe a step and I caught my foot in something, I don't know what it was. I guess it must have been a rut or something and I felt myself go but I couldn't catch myself and I was screaming and that was the last I knew." The plaintiff in fact fell over the retaining wall between the beams of the "grease pit" and sustained the injuries for which a recovery is sought in this action. The plaintiff's daughter who was sitting in the rear seat testified upon cross-examination: "My mother's heel caught on probably what was the first beam and she went right over between."

One phase of the law with reference to situations like that above described has been stated with substantial accuracy as follows: "A possessor of land who creates or maintains thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact therewith while traveling with reasonable care upon the highway, is subject to liability for bodily harm thereby caused to them." 2 Restatement of Torts, § 368. "The rule stated in this section applies to injuries sustained upon the possessor's land by persons whose entry thereon is due to their unintentional and innocent deviation from an adjacent highway." Ib. com. f.

The rule above stated, although not formulated in general terms, is clearly the underlying basis of the decision of this court in Chickering v. Thompson, 76 N.H. 311, 82 A. 839. Considered in the light of this rule of law we think that the findable facts above set forth would furnish an adequate basis for a conclusion that the defendant was at fault and that this issue should have been submitted to the jury.

The specific arguments by which the defendant seeks...