Opinion
No. 3901.
Decided April 4, 1950.
An auctioneer who has complete charge of a public auction occupies the position of owner or occupier of the premises where the auction is held and owes those in attendance the duty to use reasonable care to protect them from dangers reasonably to be apprehended. One who attends a public auction at the invitation of the auctioneer, in complete charge, is his business invitee. Where the plaintiff business invitee at a public auction was struck by a cabinet sold by the defendant auctioneer as it was being removed from the platform by the purchaser the question of whether the defendant was negligent in failing to provide suitable means for the removal of such articles or to warn invitee of the dangers involved was for the jury. In such case, although the negligent manner in which the cabinet was carried by the purchaser contributed to cause the plaintiff's injuries that fact did not preclude a finding that the defendant's negligence was also causal. The plaintiff in such case was not contributorily negligent as a matter of law in failing to investigate the means which the defendant provided for the removal of bulky articles by customers nor because of failure to protect herself from the dangers incident thereto. Where the plaintiff admitted signing a statement concerning the accident but in her testimony denied making certain portions of the statement to the effect that the defendant was not at fault, it was for the jury to decide whether to accept her testimony as true and find the defendant's negligence causal.
CASE for negligence brought by the plaintiff to recover damages for injuries received on May 12, 1947, at Henniker, when the top section of a kitchen cabinet, which had been sold by the defendant as auctioneer for the executor of an estate, fell on her while it was being removed, by the sons of the purchaser, from where it had been sold on the porch of a house belonging to said estate. There was a trial by jury, with a view, resulting in a verdict for the plaintiff.
The plaintiff loved auctions and had attended many of them. The defendant, a veteran of 1451 auctions had full charge of this one, an all-day country affair, including the advertising and the hiring of the help he needed.
In the afternoon the defendant set up his auctioneer's block practically in front of the two steps leading up to the piazza of the house on the premises. His block consisted of two carpenter's horses twenty-six inches tall on which were placed four planks each eight feet long and' ten inches wide. It was parallel to the porch, about one foot higher than its floor, extended about a foot beyond each of the two posts which marked the entrance of the porch, and stood at a distance of between eighteen to twenty-four inches from it. People crowded all around the four sides of the platform and on the porch. There was barely enough room to squeeze by between the platform and the porch but not enough space to remove the cabinet from the porch without lifting it up on top or over the auctioneer's stand.
The cabinet in question consisted of two sections held together by a wooden cleat on each side. The top section weighed sixty-five pounds, was three feet two inches high, three feet six inches long, and from eight and one quarter to twelve inches wide. The lower section weighed sixty-nine pounds, was two feet six and one-half inches high, three feet six and three quarter inches long, and three feet one and one-half inches wide.
The plaintiff was sitting on a camp stool which she had brought with her. She was in front of the porch with her back to it and near the southerly end of the auctioneer's platform. She had purchased some small glass dishes in the morning and was interested in purchasing some linens, to be sold in the afternoon, which had not been reached at the time of the accident.
The cabinet was sold from the porch instead of from the auctioneer's platform. The purchaser's two sons, one 27 years old and weighing about 160 pounds, the other a year or two older and weighing about 180 pounds, went to the porch to carry the cabinet away. The defendant suspended the auction during the process and stood about in the middle of his platform. No patrons moved. The defendant gave no instructions or directions to the crowd, he uttered no warnings, nor did he give any instructions about the removal of the cabinet. It was impossible to remove it in the space available between the porch and the platform without lifting it over the latter. While it was being so lifted by the purchaser's two sons, the top part fell off, struck the plaintiff, and caused the injuries complained of.
The defendant's exception to the denial of his motions for a nonsuit and for a directed verdict were transferred by Leahy, J.
Other facts appear in the opinion.
H. Thornton Lorimer and Francis E. Perkins (Mr. Lorimer orally), for the plaintiff.
George P. Cofran and Thomas E. Flynn, Jr. (Mr. Cofran orally), for the defendant.
The nature of the relationship existing between the parties determines the existence and extent of the duty of care owed the plaintiff by the defendant. Sandwell v. Elliott Hospital, 92 N.H. 41, 42. The defendant, by means of newspaper advertisements and flyers, had invited the public to attend this suction of which he had full charge. In response thereto, the plaintiff, who was interested in purchasing some of the merchandise to be offered for sale, was in attendance. For the purposes of the suction the defendant assumed the position of owner or occupier of the premises in question. Frear v. Company, 83 N.H. 64. The plaintiff was his business invitee. Sandwell v. Elliott Hospital, supra, 43; Roy v. Amoskeag Fabrics, 93 N.H. 324, 325. Consequently the defendant owed her the duty to use reasonable care to protect her against dangers reasonably to be apprehended. Holmes v. Stores, 95 N.H. 478, 480; Lynch v. Sprague, 95 N.H. 485, 487; Restatement, Torts, as 343, 348. And this duty extended to all parts of the premises which the defendant knew or should have known his invitees are accustomed to occupy. Ghilain v. Couture, 86 N.H. 117, 119; Roy v. Amoskeag Fabrics, supra.
The jury could well find on the evidence that the ordinary person in defendant's position would have realized the danger that someone attending the auction might be injured by the removal from the porch, of an object, such as this cabinet, in the manner undertaken by these men, and that the likelihood of this happening was such that the ordinary man in his position would have taken measures to guard against its happening. Bouley v. Company, 90 N.H. 402; Sayfie v. Gordon, 95 N.H. 182, 183. He could have located his platform differently, warned the patrons, or directed the removal so that it could have been effected in safety. It was not necessary that the defendant anticipate that the accident would happen precisely as it did. Bouley v. Company, supra, 403.
The evidence also justified a further finding by the jury that but for defendant's failure to use due care in this respect the plaintiff would not have been injured. Dervin v. Company, 81 N.H. 108, 111; Perreault v. Company, 87 N.H. 306, 309. Granting that negligence on the part of the two brothers who were carrying out the cabinet contributed to cause her injuries, the jury could properly find on the evidence that defendant's negligence was also causal. It was a question of fact to be determined by them. Ela v. Cable Co., 71 N.H. 1, 3; Derosier v. Company, 81 N.H. 451, 462; Perreault v. Company, supra.
When struck, the plaintiff was sitting in front of the porch about 5 1/2 feet south of the southerly end of the steps leading onto the piazza, with her back toward the porch, facing the auctioneer at a forty-five degree angle. While the cabinet was being sold and during its removal, the plaintiff was engaged in conversation with a lady next to her. She heard someone say, "My God, — the woman will be killed," she raised her head and heard something crack down between her shoulders.
She was not guilty of contributory negligence as a matter of law because she did not investigate the means provided by the defendant for the removal of bulky objects by customers who might do so negligently or otherwise; or because she did not take precautions to protect herself against the danger of being injured thereby while sitting, near other customers, in the place where she informed the defendant she would be without objection or warning on his part. How much reliance she could place on defendant's performance of his duty to maintain reasonably safe conditions of safety and what occasion she had to take precautions against the chance of the danger she encountered were issues of fact for the jury. Cartier v. Hoyt Shoe Corp., 92 N.H. 263, 265; Holmes v. Stores, 95 N.H. 478, 480.
Plaintiff was not barred from recovery by a portion of a written statement which said, "this accident wasn't any fault of Silas A. Rowe, the top of the cabinet just fell off." She admitted signing the writing containing those words but denied making that portion of the statement. Even if she did make it, the jury was at liberty to accept her testimony in court in preference to the above admission and find that the defendant's negligence caused her injuries. Cedergren v. Hadaway, 91 N.H. 270, 272; Cote v. Stafford, 94 N.H. 251.
Defendant's motions for nonsuit and directed verdict were properly denied, and the order must be
Judgment on the verdict.
All concurred.