66 A.2d 702 | N.H. | 1949
Plaintiff entered defendant's women's clothing store in Manchester to purchase a black coat. While she was examining one shown her by the defendant's clerk, another clerk appeared wearing a black coat that was the shade that the plaintiff said she preferred. When the plaintiff objected to the color of the cost that had been put on her the second clerk said, "come this way and you can see." The two then walked to the rear of the store, practically side by side, the plaintiff on the left and the clerk on the right, talking about the coat. Both were looking at the coat and talking, as they went into the back room. The clerk stopped and the plaintiff turned around to her right, facing the clerk, and putting her arm up to that of the clerk. The latter said, "Step back," plaintiff did, and fell over backward down the stairs. She did not know there was an open stairwell in the back room, not having been warned of it. The light in the back room was poor; there was some glass, but it was dirty, and not much natural light came through it. She saw no light globes or bulbs in the back room.
Assuming, as some evidence in the case indicated, that there was sufficient natural and artificial light in the back room for the plaintiff to see the open stairway, it does not follow that the plaintiff's contributory negligence was established. Plaintiff's conduct is to be *480
considered in the light of the attendant circumstances and not in the abstract. She was unfamiliar with the layout of the back room and the position of the stairs. Both she and the defendant's clerk were mutually and respectively engrossed in the making of a sale and purchase coat during a dispute as to the shade. When two women are so engaged, it cannot be said as a matter of law that the purchaser is negligent in failing to observe all the details of her surroundings in room into which she had been invited. There appears to be no authority to the contrary. 1 Shearman
Redfield, Negligence (Rev. ed), s. 110; Colby v. Treisman,
Defendant contends that plaintiff's testimony that there was inadequate light in the back room, is so indecisive, halting and evasive that it must be rejected (Berquist v. Company,
While the defendant is entitled upon request to clear and accurate instructions to the jury (Davis v. State,
The following instruction was requested: "The plaintiff cannot recover in this case if her own carelessness contributed in the slightest degree to cause her injury." The omission of the phrase "in the slightest degree" of itself is not fatal. Beardsell v. School,
Judgment on the verdict.
*482All concurred.