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Howe v. Jameson

Supreme Court of New Hampshire Merrimack
May 7, 1940
13 A.2d 471 (N.H. 1940)

Opinion

No. 3145.

Decided May 7, 1940.

Action against the proprietor of a hall for injuries received by a visitor attending an exhibition, who tripped over a threshold on the aisle and struck against a chair while entering the passage-way between two rows of chairs. The janitor who had been in charge of the hall for many years was permitted to testify that he had never had notice of any accident from a chair. The evidence was relevant on the sole issue of the defendant's duty to anticipate an accident and when limited to this purpose properly excluded any inference that no previous accident had happened.

General practice and custom while evidence of due care is not the standard of liability which must be tested according to the standard of persons of average prudence.

A reference in a charge to "conditions generally found and maintained under similar circumstances" did not make such conditions the test of due care for the charge as a whole correctly stated the requirement of reasonable safety and directed the jury to test liability according to the standard of persons of average prudence.

ACTIONS, for negligence. Trial by jury and verdicts for the defendant. The plaintiff Christy, herein called the plaintiff, was hurt while leaving a hall in a building belonging to the defendant. The hall had been hired for promoting a branch of domestic science, and the plaintiff was a visitor at the sessions. The evidence tended to show that she tripped over a threshold at the side of an aisle and struck against a chair, while entering the way between two rows of chairs. It was claimed that danger inhered in an improper construction of the threshold, a too narrow spacing between the rows of chairs, and an unsuitable method of repairing the chair against which she struck.

The plaintiffs took exceptions to the admission of certain evidence and to a portion of the charge. The exception to evidence is set forth in the opinion. The exception to the charge related to the following part of it:

"The duty imposed upon a landowner . . . is to maintain his premises in a reasonably safe condition . . . . His obligation is discharged if he maintains his premises in a condition such as a person of average prudence would maintain such premises . . . having in mind the use to which the premises may properly be put to. He is not required to adopt, of course, the safest and the most modern and up to date methods and equipment, but what would be generally expected to be ordinarily safe methods and equipment in the vicinity and in the kind of property involved. When you measure the conduct of the property owner in the discharge of his duties, you compare his conduct with that of the average prudent person engaged in a similar undertaking . . . you will . . . determine whether the . . . equipment, maintenance and condition were reasonably safe for . . . use . . .

"If you find conditions . . . were such as would be generally encountered in halls of this kind and nature and that the arrangement was such as persons of average prudence would have provided and maintained under like and similar circumstances, the defendant, of course, would not be liable;but if the contrary is true, that is, if the conditions there were not such as would be generally found and maintained under similar circumstances . . ., the defendant would be liable, . . . ."

Transferred by Burque, C. J.

Laurence I. Duncan and Robert W. Upton (Mr. Duncan orally), for the plaintiffs.

Demond, Sulloway, Piper Jones (Mr. James B. Godfrey orally), for the defendant.


The defendant's agent who had been in charge of the hall as its janitor and otherwise for many years was permitted to testify whether he had ever had notice of any accident to anyone from a chair. The evidence was received solely to show his knowledge or ignorance of an accident.

The defendant's duty to anticipate an accident was in issue. On the issue evidence of ignorance of dangerous conditions was competent in defence. And lack of notice of accidents therefrom to one who would naturally have notice of any occurring was relevant to show his ignorance. Without knowledge of dangerous conditions the duty of anticipation might be found not to exist, whereas with it the duty might be charged.

While the plaintiffs now assert that no claim of such notice was made at the trial, yet they did not openly disclaim it nor did they admit the defendant's ignorance of dangerous conditions. The evidence that no accident had ever been brought to notice, being material on the issue of ignorance, was therefore not to be excluded.

The plaintiffs' claim was in part that the thresholds holding the chairs in place were unsafe and the spacing between the rows of chairs inadequate. Their maintenance was charged as negligent and as explaining the plaintiff's contact with the chair claimed to be defective. The conditions relating to the thresholds and the spacing between the rows of chairs were of long standing. There were thus constants to which many persons over an extended period of years had been exposed, and the variant of a defective chair did not create an independent and distinct cause of injury. It follows that many others had experienced the factors of constancy causative, in essential part, of the plaintiff's injury, and ignorance of their dangerous condition, of which no notice of accident therefrom was evidence, was of bearing in passing upon the care due the plaintiff.

No use of the evidence as hearsay was allowed. The limitation of its purpose to show lack of knowledge excluded any conclusion from it that no previous accident had happened.

The evidence was competent on the same ground as that held admissible in Ferryall v. Youlden, 76 N.H. 548.

The exception to the charge rests on the claim that the jury either were given to understand or might infer from the charge that "conditions generally found and maintained under similar circumstances" tested due care, when the proper test is of reasonable safety. In support of their position the plaintiffs rely on the principle stated in Bouley v. Company, 90 N.H. 402, to the effect that while general practice and custom may be evidence of due care, it is not the standard of conduct which the law requires.

When the instruction relating to care is analysed in its entirety, it is thought that it stated the law in correct terms and that the jury correctly understood it. The requirement of reasonable safety and the standard of the conduct of persons of average prudence were each stated three times. The statement of a requirement of "what would be generally expected to be ordinarily safe," as short of a need of the safest methods and equipment, conveyed no meaning other than of reasonable safety. Considered in connection with the paragraph preceding it, the final paragraph of the instruction is fairly construed as a direction to test liability according to the standard of persons of average prudence. The instruction, paraphrased, was that if customary conditions were maintained, there was no liability provided they met the demands of due care, while otherwise there would be recovery. The qualifying clause being stated as a denial of liability, its omission in the contrasting statement of a finding which would demand recovery, is not found to have been of any significance to those to whom the statement was addressed. This is the fair import of the instruction, and it is not thought that its form and phraseology tended to mislead or confuse the jury.

If "a meticulous grammatical analysis of the words used lends some support to" (Gaudette v. McLaughlin, 88 N.H. 368, 373) the plaintiffs' contention, yet "Taking into account the charge as a whole, there is no `probability that the language may have conveyed to the jurors an erroneous conception of the law'. West v. Railroad, 81 N.H. 522, 533" (Peppin v. Railroad, 88 N.H. 145, 153).

The plaintiffs' assignments of error being unsustained, the defendant's exceptions present moot inquiry.

Judgments on the verdicts.

All concurred.


Summaries of

Howe v. Jameson

Supreme Court of New Hampshire Merrimack
May 7, 1940
13 A.2d 471 (N.H. 1940)
Case details for

Howe v. Jameson

Case Details

Full title:CHRISTY HOWE v. JOHN B. JAMESON. WILLIAM HOWE v. SAME

Court:Supreme Court of New Hampshire Merrimack

Date published: May 7, 1940

Citations

13 A.2d 471 (N.H. 1940)
13 A.2d 471

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