Opinion
Decided November 7, 1933.
In an action by a tenant against a landlord for injuries received by reason of defect in a common stairway the evidence warranted the inference that the defect had existed a sufficient time to apprise him of the condition. Where in an action for negligence the defendant voluntarily referred to the fact of his insurance against liability, a motion for mistrial was properly denied. The denial of a motion to set aside a verdict on the ground of the jury's passion and prejudice is equivalent to a finding that the trial was fair and such finding will not be disturbed unless made without evidence.
CASE, for negligence. Trial by jury and verdict for the plaintiff. Transferred by Burque, J., upon the defendant's exceptions to the denial of his motions for a mistrial, on account of a reference to indemnity insurance carried by him, for a directed verdict, and to set aside the verdict.
The plaintiff, a tenant of the defendant, was injured by a fall upon common stairway maintained by him upon the outside of an apartment block in Nashua. The cause of her fall was a nail protruding from the edge of the platform from which the stairs descended.
Other facts appear in the opinion.
Wason Guertin (Mr. Guertin orally), for the plaintiff.
Lucier Dowd and Ivory C. Eaton (Mr. Lucier orally), for the defendant.
The motion for a directed verdict was properly denied. The testimony of the plaintiff was sufficient to prove the presence of a nail at the time and place of the accident protruding about an inch above the surface of the platform. The contention of the defendant that it was not shown to have been there long enough to give him a reasonable time to discover it must be overruled. The nail as observed by the plaintiff subsequent to the accident was rusty. A photograph of the nail taken about a month after the accident showed its position and condition. From this photograph the jury might properly draw the conclusion that it was a construction nail which had worked loose. The nail and the board in which it stood were removed by the defendant about ten days before the trial and were not produced in evidence. Knowledge in regard to the use of nails is such a commonplace of contemporary life that the jury might properly find as a matter of common knowledge, that nails in such a situation work loose gradually, and that the nail in question was observable to the eye of reasonable vigilance for a considerable length of time before it reached the height disclosed by the evidence.
The motion for a mistrial was properly denied. The trial court has found that the reference to insurance "came on the part of the defendant himself, unsolicited and voluntary." A reading of the testimony fully sustains this finding. There is no rule of law which requires that a party be given protection against the results of his own indiscretions on the witness stand, unless they are of such a character as to render the trial unfair.
The defendant moved that the verdict be set aside upon the ground, inter alia, "that the jury was influenced by passion and prejudice." The action of the court in denying this motion was equivalent to a finding that the defendant had a fair trial, and such a finding will not be disturbed unless it clearly appears that it was made without evidence. Golej v. Varjabedian, ante, 244, 247; Bennett v. Larose, 82 N.H. 443; St. Laurent v. Railway, 77 N.H. 460, 462. Nothing of the kind appears in this case.
Judgment on the verdict.
All concurred.