The main question upon which the court differs is whether reasonable men could find on the evidence here, as did the jury, that it is a little more probable than otherwise that the ice upon which the plaintiff slipped was formed by the drip from the pigeon board. I believe reasonable men could so find. Taking the evidence most favorable to the plaintiff, it appears that during the ten days prior to the accident on January 14th, 1945 seventeen inches of snow fell, including seven inches in a storm commencing on the 14th and ending at 2:00 A.M. on the very morning of the accident. A witness for the defendant admitted that "everytime you do get a storm . . . snow does collect on the board," that the board collects "a lot of snow"; also that after a storm "of six or seven inches there is sometimes as much as five or six inches of snow banked back against the building on the pigeon roost." The same witness also admitted that the snow melts and runs "down toward the street." From the defendant's expert came the concession that "snow would collect up there" on the board and that it "would be retained on the board more than it would on the cornice itself." This because of the "resistance" offered by the nails. This witness also testified that water from the melted snow on the board would "undoubtedly ooze out over the edge of the cornice," and "probably" fall down on the street.
A witness for the plaintiff testified that during the trial, which was in January, 1948, he saw "moisture" on the sidewalk "within the first three feet of the entrance approximately." He also saw frozen "drops of water" on the edge of the cornice and "drippings . . . directly upon the sidewalk." He testified that from over the entrance way "water just slides off this board and down." He told the jury that "there is an accumulation of snow here" (on the board). He saw a "substantial amount" of snow collected on the board and "evidence of water dripping on the edge" of the cornice. This testimony carries added weight in the plaintiff's favor in view of the fact that while it was admitted that the premises remained unchanged, the temperatures were lower during the trial than just prior to the time of the accident, *Page 443 and hence the jury might reasonably find there was more melting and dripping just before January 15, 1945 than at the time of the trial.
There was evidence, and it is also common knowledge, that dripping from a building sometimes occurs when the temperature is below freezing due to the action of the sun and the heat from the building. It is significant that while each of the ten days immediately prior to and including the day of the accident showed temperatures below 32 degrees, yet on the 4th, 8th, 9th, 12th and 13th the temperatures rose from below to above freezing, reaching 38 degrees on the 4th and 36 degrees and 37 degrees on the 12th and 13th respectively. Mingled with the storms was clear weather, or at least occasions when the sun shone for substantial periods, for no less than seven days from the 2nd to and including the 15th. On the 13th the temperature was above freezing for sixteen consecutive hours and on the 12th it was alternately freezing and thawing from about 2:00 P.M. until midnight reaching 36 degrees above at that hour. Conditions during the days immediately preceding the accident were thus ideal for water to fall from the pigeon board and freeze, forming ice at the entrance way upon which the plaintiff slipped on the late afternoon of January 15. Her statement that when she fell there was "plenty" of ice and snow at the entrance is not seriously disputed. There was testimony tending to prove, and it is also a matter of common knowledge, that water from the board would not necessarily drop straight down but would be influenced by wind or air currents. The board being located some twelve to fourteen feet above the sidewalk and directly over the entrance the opportunity for such action here is obvious. To this must be added the fact, also matter of common knowledge, that as water falls and freezes, forming ice, succeeding drops tend to spatter and run, extending the frozen area.
Lastly, the jury saw the place under similar conditions to those existing at the time of the accident "which `may have furnished a vital part of the evidence.'" Tetreault v. Gould, 83 N.H. 99, 102, and cases cited. It has been well said that "a look is worth a thousand words." On this view or previously, it is a fair assumption that the jury observed, among other things, that the general foot traffic did not pass within four or five inches of the face of the building (as this would involve walking sideways) or over the place at the entrance way where the plaintiff fell, but that ordinarily only the traffic entering the building passed over this area. They may have reasonably concluded that the snow and traffic at this point were probably insufficient, without the drip, to form an appreciable amount of ice, or to put it another way that the drip rather than the *Page 444 traffic and natural snowfall made the ice where the plaintiff fell. The defendant admittedly knew that there was plenty of ice in front of the step and it should have taken little observation to discover from whence it came.
I recognize this as a close case upon which fair minded persons may differ, but I find myself unable to say, in the face of these facts, that no reasonable man could find it a little more probable than otherwise that the plaintiff slipped on ice formed by the drip from the pigeon board. This conclusion renders unnecessary any expression on whether the Court erred in withdrawing from the jury the issue of negligence in the maintenance of the step in connection with the icy sidewalk, and would order judgment on the verdict.