Wilson v. Manchester Sav. Bank.

• Decision Date: 04 May 1948
• Parties: WILSON v. MANCHESTER SAV. BANK.
• Court: New Hampshire Supreme Court

58 A.2d 745

WILSON

v.MANCHESTER SAV. BANK.

Supreme Court of New Hampshire.

May 4, 1948.

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

Case for negligence by Pearl Frances Wilson against Manchester Savings Bank. The jury returned a verdict for plaintiff. On defendant's exception. Case transferred.

New trial.

Case for negligence. Trial by jury, after a view, resulting in a verdict for the plaintiff. The defendant seasonably excepted to the denial of his motions for a nonsuit, a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict. Exceptions were also taken by the defendant to the admission and exclusion of evidence and to the refusal of the Court to give certain requests.

It appears that the plaintiff was a subtenant of a lessee of the defendant in certain premises located on 361 Massabesic Street in Manchester. On the morning of February 8, 1944, she was standing on the common platform in front of the door to the office which she sublet, seeking to enter by turning the doorknob to the right and pushing in on the door. The knob suddenly came off in her hand and she claims as a result of this and irregularities in the platform she lost her balance and fell backwards down a flight of three steps leading up to the platform, receiving the injuries of which she complains. There were no rails on the platform or stairs, and the plaintiff contends that had suitable ones been installed they would have prevented the accident. Concededly the defendant was responsible for defects in the common platform but not in the door over which it retained no control.

Further facts appear in the opinion. Transferred by Wheeler, J. Albert J. Lemieux, of Manchester, and Richard F. Upton and Robert W. Upton, both of Concord, for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell and Robert P. Booth, all of Manchester, for defendant.

BLANDIN, Justice.

Although there must be a new trial for reasons hereinafter stated, the Court correctly denied the defendant's motions for a nonsuit, a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict. The gist of the defendant's argument in support of his motions is that there is no evidence of causal negligence on the part of the defendant, and further that the plaintiff's testimony is incredible as a matter of law. Turning to the first of these two contentions we find that on the evidence most favorable to the plaintiff it might be found there was a ‘bulge’ or rise in the center of the platform three-fourths of an inch high, and that this was responsible for the plaintiff's loosing her balance when the doorknob suddenly came off as she turned it. True, there was conflicting evidence upon this, but the pictures of the platform introduced as exhibits show an appreciable rise and consequent depression, and there is testimony that this was greater at the time of the accident than when the pictures were taken. There was also evidence that such a variation not only would have a tendency to cause the plaintiff to turn her ankle but that it actually did so, with the result that she lost her balance and fell. The case is thus distinguishable upon the facts from Medbury v. Merrimack Street Garage, 91 N.H. 406, 20 A.2d 646, 647, cited by the defendant. In that case the Court said that there was no evidence of any ‘particular depression’ but ‘at most a slight roughness. * * * The record is without any evidence that more than mere roughness was the cause of the plaintiff's injuries. The most that could be found is that * * * a slight roughness * * * checked his heel when he turned. There is no duty to maintain a garage floor so smooth that such a check cannot occur.’ Medbury v. Merrimack Street Garage, supra. In Steeves v. New England Tel. & Tel. Company, 92 N.H. 52, 54, 24 A.2d 606, also cited by the defendant, the Court did not hold that a hump three-eights of an inch high was insufficient to find the defendant responsible, but said there was no evidence that the alleged hump caused the plaintiff to fall and inferentially indicated that had the plaintiff shown the hump to be a cause of the accident there would have been grounds for liability. There was also evidence in the case before us that had a handrail been placed either on the sides of the platform or in the center the plaintiff would have saved herself. The expert called by the plaintiff testified that for ten years it had been standard practice to install such rails under similar circumstances. The defendant takes nothing by its exception to this evidence as it is admissable on the question of the defendant's due care. Calley v. Boston & M. Railroad, 93 N.H. 359, 42 A.2d 329, 159 A.L.R. 115, and cases cited; Bouley v. Tilo Roofing Company, 90 N.H. 402, 10 A.2d 219; King v. Gardiner, Beardsell & Co., 76 N.H. 442, 83 A. 806. The fact that the doorknob was a contributing cause does not relieve the defendant. Harmon v. Richardson, 88 N.H. 312, 188 A. 468; Prichard v. Boscawen, 78 N.H. 131, 97 A. 563.

Since no issue is raised as to the plaintiff's care it follows that she was entitled to submit to the jury the question of the defendant's causal negligence unless no reasonable person could believe her testimony. Hebert v. Boston & M. Railroad, 90 N.H. 324, 8 A.2d 744, 748. The defendant earnestly argues that the plaintiff's extraordinary ability and apparent willingness to change her story to meet the demands of the situation are such that the Hebert case is applicable. There is force in its contention. The Hebert case has been much criticized, however, it is believed that the difficulty lies not in its tenet that ‘creditability may become a matter of law,’ but in the application, which is by no means an easy task. The defendant points to the fact that Miss Wilson gave three different versions of this accident; the first in the form of three statements, one being a letter to the treasurer of the defendant bank on March 20th, 1944; another being a statement to a representative of the defendant about a week later on March 29th, and still another, a history to the recording librarian at the Sacred Heart Hospital some two months afterwards, on May 31st. In all these she mentioned as the cause of her fall only the loose doorknob. Second, in her deposition she claimed her difficulty due to a combination of the knob and ‘loose, wobbly, sunken,’ boards. Third, at the trial, that the cause was the faulty doorknob and a ‘bulge’ or raised board on the platform. However, there appears to be some explanation for these discrepancies. As correctly pointed out by her counsel if some boards were sunken others were higher. The plaintiff says further regarding these inconsistencies that when she first told of the accident the loose doorknob was uppermost in her mind and for some months after her fall her suffering was such that she paid little attention to anything else. She also states that she considered a sunken board a loose board and that her ankle ‘wobbled’ which might have given her...