Abell v. Company , 95 N.H. 439 ( 1949 )

The defendant is not liable for the icy condition of the sidewalk if it was due to natural precipitation and traffic on the sidewalk and the entrance by pedestrians. There is evidence that such was the fact. The plaintiff testified: "A. All I remember is, there was plenty of ice and snow right in front of our doorway at 1037. Q. And there had been plenty of ice and snow right in front of your doorway at 1037 Elm Street about how long before January 15, 1945? A. I don't remember how long. Q. Well, was it a couple days or longer? A. It was longer than that. It had been there ever since the first storm. They had never cleaned it. Q. As nearly as you can recall, was the first storm a month before January 15th? A. I don't remember. Q. Well, was it a couple weeks before January 15th, or don't you know? A. I don't remember. Q. You know there were some storms prior to January 15th? A. I know there were, yes. . . . Q. But there was snow and ice for some period of time in front of the entrance of 1037? A. That is right. Q. There is, and was at that time, fairly heavy pedestrian traffic up and down Elm Street on that east sidewalk. Isn't that so? A. Yes. Q. And a good many people pass up and down that east sidewalk between Concord and Lowell Street daily, don't they? A. At that time there were probably hundreds every day." There is no burden upon the defendant to prove that the condition existing on the day of the accident was a common one natural in this latitude in January.

However, the plaintiff claims that the ice upon which she slipped was an artificial accumulation because of the negligent maintenance of the pigeon guard over the cornice. Worthen v. Abbott, 90 N.H. 164, and cases cited. In order to succeed in this claim, she must make it appear more probable than otherwise that the ice that caused her fall was due to the board above rather than to natural conditions plus the walking of many pedestrians, or at least that the board added appreciably to a dangerous condition already existing.

There is no evidence that the appearance of the ice under consideration indicated at all its source. All that the plaintiff was able to say on this point was: "The right foot was on ice and snow as I lifted my left foot." The case is unlike Worthen v. Abbott, supra, in which the ice was observed to be "frozen like ocean waves, with crevices in between and overlaps of ice," and "dirty, gray water stains" were seen on the building.

The plaintiff does seek to show causal relation between the pigeon guard and the ice upon which she fell. Her expert witness, an architect, testified that three years after the accident at the time of the trial in January, 1948 he saw dripping from the board and "evidence of moisture" on the sidewalk within three feet of the entrance. A witness for the defendant, who was a tenant in the property and occupied a room right over the entrance, admitted that if there was water on the board, it would run down toward the street. But he also testified that in his thirty-nine years of tenancy he had never seen any drippings from the cornice or from the pigeon guard. He had never seen any ice form on the sidewalk from any drippings. The expert called by the defendant did say that some of the melted snow on the board would undoubtedly ooze out over the edge of the cornice and probably fall down in the street, but he had previously testified that "with the shape that the board is in at the present time, it would seem very unlikely that water could run off that edge."

The fact that the cornice extended eighteen inches out from the line of the building and the step and so beyond the place where the plaintiff's foot slipped is met by the theory that water as it falls may be blown by the wind or that if enough of it falls it will spread.

It is unnecessary to decide whether there is any evidence of an artificial accumulation of ice because of negligent maintenance of the pigeon guard. The plaintiff's burden is to make it appear more probable than otherwise that the ice was caused by artificial accumulation rather than by natural conditions. If the possibility of the natural conditions is as strong as that of the artificial accumulation, then a verdict should have been directed for the defendant. Jakel v. Brockelman, 91 N.H. 453; Ahern v. Company, 88 N.H. 287. Between the two possibilities of the present case, the plaintiff has not shown by a preponderance of the evidence that the accident was due to a cause for which the defendant was responsible rather than to the one for which it was not. Her claim is conjecture only. The plaintiff has not met her burden of proof that it is more probable than otherwise that she was injured by an artificial accumulation of ice on the sidewalk.

The plaintiff excepted to the ruling of the Court withdrawing as an issue the alleged negligent maintenance of the step. No claim was made that the construction of the step was defective, but that, in view of the likelihood of icy conditions, either a ramp should have been used or the step placed farther in and away from the sidewalk line. A proper step is a common construction for passing from one level to another. The maintenance of a single correct step is not evidence of negligence where an accident is due to the formation on a public sidewalk of ice from natural precipitation.

Judgment for the defendant.

BLANDIN, J., dissented: the others concurred.