Medbury v. Merrimack Street Garage ( 1941 )

The plaintiff was a taxi-driver employed by Eugene Guertin, who for a consideration paid to the defendant had the right to keep his taxis, without limitation as to particular places, in the ground floor of the defendant's garage, and also rented a small office therein. While in the course of his employment on May 22, 1939, the plaintiff had occasion to go to the taxi office from the point in the garage where his master's cars were standing.

As he went, he passed over a beveled edge in the concrete floor, and near it, he claimed, his foot caught in a "hole in the floor." He did not describe the "hole." Though he had worked there more than a year, he had never seen the "hole" before.

A witness called by the plaintiff said that there were a few rough spots at or near the bevel, though he had never seen any holes. Still another plaintiff's witness testified that the plaintiff's heel caught in a crack "where it is chipped off — I don't know if you call it a hole." The remaining witnesses were ignorant of any imperfection at the spot.

Photographs in evidence do not indicate any particular depression at the point where the plaintiff says he fell, but at most a slight roughness. Niemi v. Railroad, 87 N.H. 1, 2. The record is without any evidence that more than mere roughness was the cause of the plaintiff's injuries. The most that could be found is that he stepped backward upon a slight roughness that checked his heel when he turned. There is no duty to maintain a garage floor so smooth that such a check cannot occur.

Judgment for the defendant.

BRANCH, J., did not sit.