Opinion
Decided December 1, 1936.
In an action for causing death by negligence the plaintiff is not required to disprove the operation of all other possible causes. It is enough if he makes it appear more probable than otherwise that the death was caused by the alleged negligence, and the absence of any equally probable cause may warrant a finding in his favor. Where evidence is produced that a defective railing was the cause of a person's fall from a balcony, her nearsightedness cannot be regarded as the sole legal cause of her fall but only as bearing on the question of contributory negligence. Where the plaintiff's claim is that a balcony railing was not of sufficient height to afford a guide to the hand of one walking on the balcony, the question of the strength of the railing to resist the pressure of the human body is irrelevant.
CASE, for negligently causing the death of the plaintiff's intestate. A trial by jury after a view resulted in a verdict for the plaintiff.
The plaintiff and the decedent, who was his mother, were tenants the defendant. They lived in the southernmost of a row of three tenements on the second floor of a building located on the northwest corner of Pearl and Chestnut Streets in Manchester. This building fronted upon Chestnut Street, which runs north and south, and along its rear or westerly wall there was an outside balcony about three feet wide the floor of which was about eleven feet above the level of the ground. The only means of entrance onto this balcony were doors in the rear of each second floor tenement. As originally constructed there was a railing, twenty-three inches high, which extended all the way around the balcony.
Soon after the plaintiffs came to live in the defendant's tenement, he, at their request, provided an additional rail for that part of the balcony which was outside their tenement. This new rail consisted of a plank running parallel to and about seventeen inches above the old railing, which brought the top of it about forty inches above the balcony floor. This supplementary rail was fastened at either end to uprights used to support cross-pieces upon which clothes lines were stretched. It had never been extended across the southerly end of the balcony but stopped at the southwest corner of it.
Across this southerly end of the balcony, in addition to the old rail, there was a wall or partition made of boards which extended out from the building to the westerly rail of the balcony. These boards were located about eight inches in from the original southerly rail, and were nineteen inches high at the outer end and twenty-two inches high where they were nailed to the building itself.
Several eye witnesses testified to the events immediately preceding the accident. The decedent, who was sixty-three years old and nearsighted, was described by them as walking slowly along the balcony, in a southerly direction. She had her right hand on the new or upper rail which extended along the westerly side of the balcony, apparently using it for the purpose of guiding or steadying herself. When she reached the southerly end of the balcony she reached out over that end, as one witness described it, "like as though she was trying to grab hold of something," and fell to the ground below receiving the injuries from which she later died.
The defendant seasonably moved for a nonsuit and for a directed verdict, both of which motions were denied, and the court, Johnston, J., allowed the defendant's bill of exceptions.
John J. Sheehan and Paul J. Doyle (Mr. Doyle orally), for the plaintiff.
Thorp Branch (Mr. Branch orally), for the defendant.
The defendant does not contend that he owed the decedent no duty to exercise due care for her safety nor does he contend that there is no evidence in the record from which his failure in that respect could be found. Neither does he contend that the decedent's contributory negligence is conclusively established. His sole contention, as expressed in his brief, is that even "if the defendant was negligent, there was no evidence from which the jury could find that the negligence was causal."
The defendant summarizes his argument in support of this position as follows: "The primary cause of the accident was either Mrs. Harmon's defective eyesight or a sudden seizure of some kind. Whether she fell over the rail because she could neither see it nor find it with her hands or because of a sudden seizure, we do not know, and whether a rail five inches, or six inches, or seven inches higher would have saved her or permitted her to save herself rests entirely in the realm of conjecture."
This argument is based upon a misconception of the extent of the burden of proof placed by the law upon a plaintiff. His burden is no greater "than that of making it a little more probable than otherwise that the . . . [fall] was caused by the defendant's negligence. . . . [He is] not bound to disprove the existence of all other possible causes." Bresnahan v. Company, ante 273, citing Upton v. Company, 81 N.H. 489, 492, and cases cited.
In the case at bar there is no evidence that the decedent, just prior to her fall, suffered a heart attack or any other "sudden seizure." The only evidence is that when she arrived at the end of the balcony she reached out and then toppled to the ground below. This lack of evidence of any other equally probable cause of the injury for which the defendant is not responsible (Boucher v. Larochelle, 74 N.H. 433), takes the case out of the category of Ingerson v. Railway, 79 N.H. 154, and Russell v. Railroad, 83 N.H. 246, relied upon by the defendant, and places it in the category of Bresnahan v. Company, supra, and Upton v. Company, supra.
Among the many authorities collected in the case last cited it is necessary to refer to but one which is closely in point. In Angelico v. Company, 80 N.H. 290, the decedent fell to his death from a defective staging or runway. No one testified as to the cause of his fall. In conclusion the court in that case said: "In short, the conclusion the intestate lost his balance is one of which the evidence is there is no other equally probable conclusion inferable from the evidence, it cannot be said the court erred when it denied the defendant's motion for a directed verdict." This language is fully as applicable to the facts in the case before us as to the facts in the case in which it was used, and we see no reason to question its accuracy.
Under the facts of this case the decedent's nearsightedness cannot be regarded as the sole legal cause of her fall. It was only one of the pertinent surrounding circumstances to be considered by the jury in passing upon the question of whether or not she used due care for her own safety. Sleeper v. Sandown, 52 N.H. 244; Daniels v. Lebanon, 58 N.H. 284.
The defendant's further argument, based upon Cozzi v. Hooksett, 84 N.H. 530, is equally without merit. In that case the plaintiff's automobile skidded against a non-standard highway railing which broke and permitted it to fall over an embankment. It was held that the plaintiff could not recover in the absence of evidence that a standard rail would have proved adequate to prevent the car from leaving the road.
In the case before us the evidence is clear that she was proceeding slowly and using the westerly rail only to guide herself. The accident happened not because the southern railing was too weak but because it was not high enough to serve as a guide. While expert testimony is necessary, under certain circumstances, to inform the jury as to the amount of force which a given railing can withstand, it does not follow that similar testimony is required to inform them as to the suitability of a rail for use as a guide or warning even when it is used for that purpose in a physical rather than in a visual sense. (See Vidal v. Errol, 86 N.H. 1, 13.)
Judgment on the verdict.
BRANCH, J., did not sit: PAGE, J., was absent: the others concurred.