Supreme Court of New Hampshire CheshireOct 24, 1955
100 N.H. 12 (N.H. 1955)
100 N.H. 12117 A.2d 924

No. 4422.

Argued October 4, 1955.

Decided October 24, 1955.

Where the plaintiff entered the defendant's automobile service station as a business invitee to purchase supplies and services and was injured by falling into an unguarded service pit known by the defendant to present a dangerous condition not likely to be discovered by the plaintiff it was the duty of the defendant to warn him of such condition whether at the time of the accident his status was business invitee or only a gratuitous licensee.

In such case, failure to warn the plaintiff against the dangerous condition of the service pit located within the garage in an area frequented by customers in general and having no protective chain guards at the time of the accident justified submitting to the jury the issue of defendant's negligence.

Contributory negligence was not established as a matter of law by reason of the fact that plaintiff entered the area in the garage where the service pit was known to be and was generally familiar with its location where on all plaintiff's previous visits the pit had been guarded by chains but on the night of the accident was unguarded and the plaintiff exercised care to avoid falling into it.

The denial of motions to set aside the verdict and for a new trial implies a finding that the trial was fair and such a finding will not be disturbed unless it clearly appears that it was made without evidence.

Failure to grant motion for mistrial based upon a request that the plaintiff leave the courtroom while a certain witness was testifying was not error; nor did an attempt to inquire into plaintiff's fraternal affiliations and war record entitle the defendant to a mistrial as a matter of law where the jury received proper instructions.

CASE, to recover damages for personal injuries sustained by the plaintiff when he slipped and fell into a wheel alignment pit in defendant's garage.

Located in East Jaffrey, defendant's garage was a one story building with an office, salesroom and lubritorium along the front and a service department including a stockroom, washstand, wheel alignment pit and a general area for storage and repair in the rear. There were gasoline pumps in front of the building and a macadamized driveway in front and on both sides of it. Motor vehicles entered the lubritorium through a rollaway door in the front. There were rollaway doors on either side of the building which enabled vehicles to enter directly into the service department and it could also be reached on foot by a smaller door on each side of the building and by means of two doors leading from the showroom.

The wheel alignment pit was located in the southeast corner of the garage just north of the washstand and of the vulcanizing machine. It was nine feet two inches long, seven feet wide and from eighteen to nineteen inches deep. Its southeast corner was four feet four inches west of the rear or east wall of the repair shop and its northeast corner three feet four inches from said wall. There resulted thereby a tapering passageway for one proceeding northerly between the pit and the east wall of the garage.

Plaintiff fell into the pit after he had proceeded about two-thirds of the way by it along this passageway going in a northerly direction.

Trial by jury with a view resulted in a verdict for the plaintiff.

Defendant excepted to the denial of its motions for nonsuit, directed verdict, a mistrial, to set aside the verdict and for judgment notwithstanding the verdict. It also excepted to the admission and exclusion of evidence, to certain portions of the argument made by plaintiff's counsel, to certain parts of the charge as given and to the refusal of the Court to grant certain requests for instructions.

Defendant's exceptions were reserved and transferred by Wheeler, C. J.

Walter H. Gentsch and William D. Tribble (Mr. Tribble orally), for the plaintiff.

Bell Bell (Mr. Ernest L. Bell, III orally), for the defendant.

There was sufficient evidence that the alignment pit maintained without guard chains constituted an unreasonable risk to persons lawfully on the premises. Defendant's manager, who is also its president and treasurer, testified that guard chains are a safety measure for preventing persons from getting injured in the pit; that they are a customary thing in all garages and that he had instructed his employees to keep the chains up at all times.

The manager testified that he was on the premises about fourteen hours a day. Plaintiff's brother, an employee of defendant for about eight months before the accident testified that he never saw the chains being used to guard the pit. It could therefore be found that defendant knew that the pit was unguarded and that it constituted an unreasonable risk of injury to persons who might be expected to enter the premises. Smith v. Animal Farm, 99 N.H. 243.

Having this knowledge defendant's duty to warn the plaintiff was the same whether he was a gratuitous licensee as contended by defendant or a business invitee as plaintiff maintains. Ward v. Avery, 113 Conn. 394; Restatement, Torts, s. 343, comment a. It was under duty to give him information as to known existing dangerous conditions which he was not likely to discover. Nickerson v. Association, 96 N.H. 482; Mitchell v. Legarsky, 95 N.H. 214.

There was evidence that plaintiff had been in the repair department of the garage while defendant's manager, Wade, was there. No restrictions as to the use of any part of the premises were imposed on the plaintiff or any other customer by means of signs or otherwise except as to the stockroom. On previous occasions customers had used that part of the garage in the vicinity of the washstand and of the wheel alignment pit. In Wade's presence customers had entered the repair department through the showroom and from either side of the garage.

There was a large showcase displaying automobile accessories in one part of the repair shop. There were at least four lights on therein at the time plaintiff arrived there that night. He was requested by his brother, defendant's employee whose duty it was to close up the garage that evening, to put out the light near the vulcanizing machine. Surely "on this record it cannot be said as a matter of law that the plaintiff was a trespasser." Rau v. Stores, 97 N.H. 490, 496; see Sandwell v. Hospital, 92 N.H. 41; Packard v. Kennedy, 4 Ill. App. (2d) 177. He came as a business invitee to purchase gasoline and other services. Whether at the time of his accident his status had changed to that of a gratuitous licensee it is not necessary to decide because with defendant's knowledge of the dangerous condition which existed it owed him the duty as licensee or invitee to warn him of dangerous conditions which he was not likely to discover. Restatement, Torts, supra. See Nickerson v. Association, supra; Rau v. Stores, supra; anno. 23 A.L.R. (2d) 1140.

Although the dimensions and characteristics of the chains used as a guard around such pits are not detailed in the record the jurors had a view of a similar pit and chain. Connors v. Turgeon, 96 N.H. 479, 481. They had an opportunity to observe, and there was also evidence as to the general surroundings of the pit in defendant's garage. A finding that defendant had reason to believe that plaintiff would not discover the condition or realize the risk of the unguarded alignment pit was sustainable on the evidence.

Nor are we of the opinion that plaintiff was guilty of contributory negligence as a matter of law. Whenever he had been in the vicinity of the pit previously the guard chains had been in place around it. That night there was no light directly in the vicinity of the pit which would clearly show the presence or absence of chains although there was light by which plaintiff could see; where he was going. He testified that though he knew the location of the pit he did not know that it was so constructed as to make the passageway taper about a foot traveling in a northerly direction as he was at the time of the accident and that he was looking for all the objects there so as not to knock anything down or run into anything. He further testified that he was doing everything he could to be careful as he did not want to be hurt. "When I got — oh, about two thirds . . . along the wheel aligning pit, I slipped. My left foot came up; when it came down, there was nothing there and I went into the wheel aligning pit and hurt myself." We cannot say that the only inference permissible from that evidence was that the plaintiff exercised no care and that his failure contributed to his injury. Montrone v. Archambault, 99 N.H. 179, 181. This case is distinguishable from Bedell v. Davis, 202 F.2d 1, where the plaintiff slipped and fell into a grease pit in the daytime while she was stepping backward while putting down her umbrella.

It could be found on the evidence that plaintiff as a business invitee or a gratuitous licensee was injured by a defective condition in defendant's premises known to it which he was not likely to discover and about which defendant failed to warn him; that this condition was in a part of defendant's premises in which it should have expected plaintiff to be present and that his conduct did not contribute to this injury. The defendant's motions for nonsuit and directed verdict were therefore properly denied.

The action of the Trial Court in denying defendant's motion to set aside the verdict and to grant a new trial was equivalent to a finding that it had a fair trial and such a finding will not be disturbed unless it clearly appears that it was made without evidence. Damboise v. Goodman, 86 N.H. 360, 361. We have examined the grounds for mistrial alleged by defendant, that is, the request that plaintiff leave the court during testimony of a witness, and the attempt to inquire into his particular fraternal affiliations and his war service. When there was need for such instructions the Trial Court properly instructed the jury not to consider these matters in arriving at their decision. We find no reason to disturb the Trial Court's finding.

These being the only exceptions briefed or argued by the defendant the order is

Judgment on the verdict.

All concurred.