Opinion
No. 3162.
Decided May 27, 1940.
Where a party testifies as to contradictory conclusions of fact both of which are equally based upon conjecture, the jury will not be permitted to accept one conclusion and reject the other.
One who voluntarily encounters a known danger and pays no attention thereto is barred from recovery for his injuries occasioned thereby.
CASE, for negligence. The plaintiff, a member of the defendant association, while playing basketball on an association team, fell upon some bleachers placed along the wall of the gymnasium on the floor where the game was being played. Trial by jury and verdict for the plaintiff. Motions for a nonsuit and directed verdict were denied subject to the defendant's exceptions.
The distance from the side line of the playing area to the wall of the gymnasium was 47 inches. The width of the bleachers was 32 inches, so that when they were set back close against the wall there was a space of 15 inches between the front of the bleachers and the side line. The defendant's physical director testified that the bleachers were placed against the wall on the night of the accident and that it was customary, for safety, to place them there. The plaintiff's evidence tended to prove that they were not so placed but that the open space along the side line was only three or four inches in width and that he did not discover this fact until after he was injured.
The plaintiff was a substitute and did not play until the third period. He described the accident as follows: "I took the ball, and threw it, and it went into the basket, and it went through the basket; the ball was thrown out again, and it was thrown over on the right hand, west side, where Sanborn was, . . . we both went for that ball . . . and we both bumped, . . . and when he bumped me I went backwards. I was on the Boundary Line, as he hit me . . . . I went this way, he went the other way, — I don't know where he fell, . . . he hit me hard enough to knock me backwards . . . and that is how it was."
A bill of exceptions was allowed by Young, J.
Alvin A. Lucier (by brief and orally), for the plaintiff.
Albert Terrien (by brief and orally), for the defendant.
On direct examination the plaintiff was asked: "Is there any question in your mind but what if the bleachers hadn't been so close to the playing surface you would have been able to regain your balance and not fall?" He answered, "That is right."
On cross-examination he testified that the accident would have happened just the same if the bleachers had been placed back fifteen inches from the side line. He said: "I would have had an accident if they were placed that far. . . . I would have if the bleachers were there. . . . I am sure about that."
It is not a situation where the jurors were at liberty to accept one statement and reject the other; for, considering the roughness of the game and the fact that the plaintiff was knocked backward by an opposing player, any opinion that the accident would not have happened if the open space outside the playing area had been a few inches wider would be purely conjectural. The plaintiff's real complaint is that the bleachers were there at all.
But he knew they were there and knew also that players during the progress of the game might be thrown against "anything" that was "around there." With this knowledge he entered a "strenuous game" and it is conceded that his "attention was upon the ball from the moment of entry." Under these circumstances the only reasonable conclusion to be reached is that he voluntarily encountered a known danger with no heed thereto. Such conduct precludes recovery. Robinson v. Railroad, 85 N.H. 474, 475, 476. See, also, Williamson v. Company, 89 N.H. 216, 218.
Judgment for the defendant.