Summary
In Cartier v. Hoyt Shoe Corp., 92 N.H. 263, 265, 29 A.2d 423, 424, (1942), the Court held that the defendant store owner owed the plaintiff invitee a duty to maintain reasonable conditions of safety, and that the plaintiff "was entitled to place some reliance on the performance of that duty."
Summary of this case from Barrett v. Foster Grant Co.Opinion
No. 3350.
Decided December 1, 1942.
In an action by an invitee against the owner of premises whereon she was injured when stepping on a tread at the edge of a floor to go down a stairway, the evidence as to the worn condition of the tread justified a finding of its negligent maintenance. Where evidence shows no cause for a person's falling down a stairway other than a defect sufficient to cause it, there is sufficient evidence for submission to the jury. In such case the question whether such invitee's fall might be due solely to her failure to observe and appreciate the distance from the door, through which she had passed, to the edge of the floor, was for the jury. In such case due care on the plaintiff's part did not necessarily require her to anticipate the unsafe condition of the tread and thus to look at it to see if it was safe. Though in such case the plaintiff was familiar with the premises and had previously used the stairway without notice of any defects, she was entitled to place some reliance on performance by the defendant of its duty to maintain reasonable conditions of safety; and what occasion she had to take precautions against the chance of danger was an issue of fact and her failure to investigate, however easy investigation might be, was not an omission of care as matter of law.
ACTION, for negligent maintenance of a stairway. Catharine, herein called the plaintiff, fell as she stepped off the floor from which the stairway led down. William is her husband and his action is derivative from hers. She had the status of an invitee.
A jury trial resulted in a disagreement. The defendant's exceptions to denials of motions for nonsuits and directed verdicts have been transferred by Connor, J. Evidence of other facts appears in the opinion.
Warren, Wilson, McLaughlin Wiggin (Mr. Wiggin orally), for the plaintiffs.
Devine Tobin (Mr. Tobin orally), for the defendant.
The evidence warranted a finding that the tread at the edge of the floor from which the plaintiff stepped to go down the stairway was so worn as to make its condition one of negligent maintenance. She testified: "The top landing was not even. It was grooved in, I would say, about an inch. In other words, the edge of it was worn and looked very slippery looking." While some wear of stair treads is to be expected and creates no demand for repair, the point at which the wear has become so great as to make the stairs unduly hazardous is one of fact, and the evidence quoted tended to show that the danger point had been passed.
If the evidence shows no cause of the fall other than the defect, it is sufficient. Harmon v. Richardson, 88 N.H. 312, 314. And if the fall might be found due to failure to appreciate and observe the distance from the door through which the plaintiff passed to the edge of the floor at the top of the stairs, it was for the jury to weigh the probabilities between the causes claimed. Boucher v. Larochelle, 74 N.H. 433.
The evidence fails to compel a conclusion of the plaintiff's fault. Due care did not necessarily require her to anticipate the unsafe condition at the edge of the floor where she stepped down on the stairway, and thus to look at it to see if it was safe. It was in evidence that she was familiar with the premises and had used the stairway in going up to the floor from which she fell without notice of any defects. The defendant owed her the duty to maintain reasonable conditions of safety, and she was entitled to place some reliance upon the performance of the duty. What occasion she had to take precautions against the chance of the danger she encountered became an issue of fact. Failure to investigate, however simple and easy the investigation might be, was not an omission of care as matter of law. Her conduct findably measured up to the required standard in anticipating and taking precautions against possible dangers. Halley v. Brown, ante, 1; Perkins v. Company, 91 N.H. 211; Martin v. Railroad, 91 N.H. 63; Shea v. Manchester, 89 N.H. 547; Dorrien v. Sirois, 87 N.H. 144, 147; Howe v. Company, 87 N.H. 122, 126; Burns v. Cote, 86 N.H. 167; Barrett v. Company, 85 N.H. 33, 35; Pickford v. Abramson, 84 N.H. 446, 448, 449; Sevigny v. Company, 81 N.H. 311, 313.
In the cases cited by the defendant the circumstances were of obvious dangers demanding precaution and protection against them.
Exceptions overruled.
All concurred.