82 A. 839 | N.H. | 1912
In the ordinary case, the test to determine whether it can be found that a landowner is in fault for an injury caused by a condition of his premises created by others is to inquire whether he knew or ought to have known of the condition in time to prevent the accident; and if he did, whether he could have entered legally to remedy it. Rockport v. Granite Co.,
As Wells' occupation of the vacant lot was that of a licensee, the defendant might have entered at any time to remove the stake. Rockport v. Granite Co., supra. Consequently it may be found that he is in fault, if maintaining such a stake in such a place for such a purpose was an unreasonable interference with the highway. If it is found that necessarily follow that the plaintiff can recover in this action. The duty of not doing anything to interfere with the use of the highway was imposed on the defendant for the benefit of travelers, and not for those who might attempt to cross the vacant lot either with or without Wells' invitation. Towne v. Thompson, *313
If it is conceded that the plaintiff knew Wells was maintaining the stake, it cannot be said as matter of law that she is in fault merely because she forgot about it. Neither can it be said it conclusively appears that she is in fault because she failed to see the stake in time to avoid coming in contact with it; for it might be found that it was so small and so near the color of the ground that it was not likely to attract attention.
Exception sustained.
All concurred.