Opinion
No. 3023.
Decided April 4, 1939.
In an action by a pedestrian for injuries caused by a fall on an icy sidewalk certain evidence as to the defective construction of the defendant's bay windows adjacent to the sidewalk warranted the conclusions that water dripped over the edges of them, and freezing on the sidewalk caused an artificial accumulation of ice dangerous to travelers.
When forces or conditions calculated to produce a certain result are shown to have been in operation or in existence at a given time, and the expectable result occurs, the inference is permissible that the result was the consequence of the factors which rendered it antecedently probable.
Thus the conclusion that the particular ice on which a pedestrian slipped came from an adjacent roof was warranted by testimony that at other times water was seen dripping from the roof onto the sidewalk together with evidence as to weather conditions and variations in temperature immediately prior to the accident.
CASE, for negligence to recover for personal injuries alleged to have been sustained by the plaintiff as the result of a fall upon an icy sidewalk in front of the defendants' apartment house. A jury trial resulted in a disagreement. The defendants' exceptions to the denial of its motions for a nonsuit and a directed verdict were transferred by Burque, C. J.
There was evidence tending to prove the following facts. The defendants' building was located on the west side of Elm Street in the city of Manchester. In the middle of the building are two entrances which are reached by a single set of wooden steps. An iron railing divides these steps in the center. At each end of the steps is a bay window having a depth of 4 feet, 2 inches and a frontage of 9 feet, 10 inches. The space between the bay windows, which is fully occupied by the steps, is 15 feet, 7 inches. The plaintiff testified that she fell upon the sidewalk at a point just north of the iron railing which divides the steps. Upon looking around to discover the cause of her fall she observed that the ice on the sidewalk was lumpy, uneven and "frozen like ocean waves, with crevices in between and overlaps of ice," meaning that "the waves overlapped." She also testified that she saw "dirty, gray water stains" on the building "around . . . the inside of those bays there." There was evidence that the roofs of the bay windows were practically flat with a slight slope toward the main roof of the building but without a parapet or other effective barrier to prevent water from dripping over the edges. In this situation water falling on the bays "would run off the four sides, three on the street, and one in toward the building." The accident happened upon January 2, 1934. The temperature at that time was not below zero but was freezing.
Other facts are stated in the opinion.
Paul J. Doyle and John J. O'Reilly, Jr., (Mr. Doyle orally), for the plaintiff.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. William J. Starr, Jr., orally), for the defendants.
The defendants do not seriously deny that the evidence would justify a finding that the construction of the bay windows which permitted water to drip from three sides onto the sidewalk was improper. They rest their entire case upon the proposition that there is no evidence of causal connection between the injury to the plaintiff and the alleged improper construction of the bay windows.
The most interesting argument advanced in support of this position is the following: "If the building had no bays, the water which now falls on the roof of the bays would fall directly down onto the sidewalk area. As the situation is at present, even according to the plaintiff's expert, some part, either one-quarter or one-third of this water, flows back onto the main roof, away from the street. It is therefore impossible for any reasonable man to say that the construction or existence of these bays increases the flow of water or artificially diverts water onto the sidewalk."
The obvious answer to this argument is that when rain or snow came to rest on the roofs of the bays, its natural precipitation from the clouds was ended. Thereafter the course of its further progress towards the ground was wholly determined by the character of the man-made structure upon which it fell. There is therefore no escape from the conclusion that any water which dripped over the edges of the bays was artificially diverted from its natural course. It reached the sidewalk at points where it would not have fallen in the uninterrupted course of nature in quantities which at those points were abnormal. If as a result thereof an artificial accumulation of ice was produced, the defendants, as they apparently concede, would be liable for any harm thereby caused to travelers. Bixby v. Thurber, 80 N.H. 411; Palmer v. Edgerly, 87 N.H. 391.
The defendants further contend, however, that "the plaintiff has failed to show that the particular ice on which she slipped came from their roof." It is true that no witness testified directly that the ice upon which the plaintiff slipped was formed by water coming from the roofs of the bays, but there was testimony that at other times water had been observed dropping from the roof to the steps and running thence onto the sidewalk. The evidence as to weather conditions and variations in temperature immediately prior to the accident justified a conclusion that the formation of ice as the result of such a flow of water was probable. The probability that such a result actually ensued was strengthened by the plaintiff's description of the ice upon which she fell. Under these circumstances, direct testimony as to the source of the water from which the ice was produced was unnecessary. It is good law, as well as sound logic, that when forces or conditions calculated to produce a certain result are shown to have been in operation or in existence at a given time and the expectable result occurs, it is a permissible inference that the result ensued as a consequence of the factors which rendered it antecedently probable. McDonald v. Elkins, 88 N.H. 249, 252; Maravas v. Insurance Co., 82 N.H. 533, 540.
We, therefore, conclude that there was evidence from which it might be found that the plaintiff was injured by an artificial accumulation of ice on the sidewalk, produced, in part at least, as a result of the defendants' negligent failure to provide proper roofs for the bay windows. The case, therefore, was properly submitted to the jury.
Exceptions overruled.
All concurred.