Opinion
No. 3982.
March 6, 1951.
Where a gratuitous licensee was injured in a fall from the defendant hospital's porch as the result of a guard chain giving way, certain evidence justified the finding that the defendant was liable in failing to replace a defective wooden attachment supporting the chain to the building, where it had knowledge that others had become loose and had been replaced by lead plug attachments. Where defendant's knowledge of a peril was findable the fact that the defendant could not anticipate the instant when nor the exact manner in which the peril would become operative cannot excuse it. Evidence defendant knew of safer methods which were commonly used is admissible as bearing on its due care.
CASE, to recover for personal injuries resulting from a fall of the plaintiff on August 7, 1949, from the defendant's porch. Trial by jury with a verdict for the plaintiff. The defendant excepted to the admission and exclusion of evidence, to the denial of its motions for a nonsuit and a directed verdict, to portions of the charge and to the denial of its motion to set aside the verdict.
The plaintiff, who the parties agreed was a gratuitous licensee, came to the hospital with his wife and small daughter to visit his sister-in-law. Other relatives were also there and as the defendant's policy was to allow but two persons to visit a patient at a time the plaintiff and his daughter remained on the porch, the weather being fine, while Mrs. Nickerson and another relative went inside. The porch is about twenty-two feet by eleven feet and at the place of the accident is about three feet above the ground. There are three wooden pillars on each side of the steps leading up to the porch, one pillar on each side at the head of the steps and two at each corner. There is no railing around the porch but two heavy chains one under the other, the top one about three feet above the floor, the other some fifteen inches lower, are suspended between the pillars. At each side of the porch they are suspended between a pillar and the granite wall of the building. The chains were described as heavy enough to "tow a battleship" and were fastened to the wall by slipping a link over a hook like a clothesline hook. These hooks were originally screwed into wooden plugs driven into the wall. At various times before the accident all the wooden plugs, except the one fastening the chain which gave way with the plaintiff, were replaced with lead plugs because the defendant's superintendent of buildings and its maintenance man found the hooks became loose in the wooden plugs.
The plaintiff while waiting leaned against the upper chain and fell backward as the hook pulled out striking his head on a catch basin below. It appeared that part of the plug adhered to the screw portion of the hook and the rest remained in the wall. There were stringy fibers at the end of the part of the plug which was on the hook and it appeared to have pulled apart lengthwise of the grain.
Transferred by Leahy, J. Other facts appear in the opinion.
Sulloway, Piper, Jones, Hollis Godfrey (Mr. Irving H. Soden orally), for the plaintiff.
Nighswander Lord (Mr. Hugh H. Bownes orally), for the defendant.
The main questions are first, was the defendant association negligent in maintaining a known dangerous condition without warning the plaintiff, and second was the plaintiff justifiably ignorant of it. In our opinion the answer to both of these questions is yes.
The plaintiff's expert testified that wooden plugs, due to moisture and compression from the pressure of the screw within and of the wall without, lose their elasticity and tend to become loose within a year or two so that the hooks pull out. This is what happened and within the two years prior to the accident all the hooks except the one holding the chain which gave way with the plaintiff became loose and the wooden plugs were replaced with lead. This the defendant knew was generally used and was safer than wood. The defendant also knew that many people waited on the porch, particularly in summer and there was testimony that the defendant knew that children played about the porch and that if anyone put weight on a chain a loose hook might come out. It seems reasonably expectable that someone whiling away this tedious waiting might lean against these massive chains. Under all the circumstances the defendant's negligence in maintaining this arrangement was for the jury.
However, this is not enough to warrant the verdict since the plaintiff must also show that the defendant not only should have but actually did know that the danger which caused the plaintiff's injury existed. Sandwell v. Hospital, 92 N.H. 41; Restatement, Torts, s. 342. There was testimony from the defendant's employees that having found the hooks became loose they realized there was danger and tested them as often as once a week to be sure they were secure. Three out of four hooks originally screwed into the wooden plugs had become loose and had been replaced before this accident occurred. The defendant admittedly knew that the hooks in the wooden plugs became loose, that this was dangerous and that no one could tell when it might happen. It was therefore findable that the defendant was aware of the peril and that the plaintiff was justifiably ignorant of it. The fact that the defendant could not anticipate the instant when or the exact manner in which the peril would become operative cannot excuse it. Kenney v. Wong Len, 81 N.H. 427, 428, 429; Bouley v. Company, 90 N.H. 402.
The only other exceptions meriting discussion are to evidence of the replacement of the wooden plugs before the accident by lead which was the "general procedure" and also of a device known as a spreader for holding the hooks firm. This evidence was limited by the Court to its bearing on the defendant's due care and was admissible to show its awareness before the accident of the dangers of wooden plugs and also that there were other safer and commonly used methods available. Hood v. Nashua, 91 N.H. 98. It follows the order must be
Judgment on the verdict.
All concurred.