The declaration contains two counts. In the first, it is alleged that the defendant's building is placed by the side of the highway, and so constructed that the snow and ice may accumulate upon the roof, and from the roof fall into the street; and it does not allege any negligence or want of due care in the construction or management of the building, and therefore assumes as law, that if, under any circumstances, snow and ice should fall from the roof and injure a passenger in the highway, the defendant would be liable absolutely.
The second count alleges that the roof was constructed so as to overhang the highway, and that, through the negligence of the defendant, the snow and ice fell into the street and injured the plaintiff.
In Brown v. Kendall, 6 Cush. 292, SHAW, C. J., says, arguendo, — "If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom."
"In using this term, ordinary care, it may be proper to state that what constitutes ordinary care will vary with the circumstances of cases. In general, it means that kind and degree of care which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger."
"To make an accident, or casualty, or, as the law sometimes states it, inevitable accident, it must be such an accident as the defendant could not have avoided by the use of the kind and degree of care *Page 60 necessary to the exigency, and in the circumstances in which he was placed."
It appears to me that the eminent judge who delivered the opinion in this case has given in these few words a clear and intelligible statement of a principle of law of universal application. In the case of Brown v. Collins,53 N.H. 442, the doctrine laid down by SHAW, C. J., in the case of Brown v. Kendall, 6 Cush. 292, and above cited by us, is affirmed and approved after a very elaborate and exhaustive discussion, and must now be taken to be the law of New Hampshire. There may be cases where the very fact that the accident has happened may justly be considered as evidence tending to show neglect.
In the case under discussion, it is not alleged that the defendant, in erecting and maintaining her building, had violated any local statute or by-law of the city of Manchester, nor does it appear that the act of erecting and maintaining the building was unlawful, — so that the defendant is not liable unless there has been a want of due care; and the first count of the declaration, which seeks to charge her absolutely, cannot be maintained.
By Gen. Stats., ch. 70, sec. 11, the erection or continuance of a building upon or over any highway is punishable by indictment and fine, and the building so erected is a nuisance. If, therefore, the building of the defendant is, as alleged in the second count of the plaintiff's declaration, so built as to project over the highway, it is a nuisance, and the maintaining of it an indictable offence. This being so, the injury to the plaintiff would appear to have been produced by the unlawful act of the defendant, and she would be liable without proof of negligence.
FOSTER, C. J., C. C. I agree with my learned brethren that the first count in the plaintiff's declaration cannot be sustained, and that the demurrer thereto must be allowed. The second count not only alleges positive negligence and want of proper care in suffering the snow and ice to accumulate upon her building and to remain there, and, moreover, that the building was "so constructed" as to obstruct the fall of snow and ice and cause it to accumulate thereon, and to cause ice to form on the roof and be precipitated upon the sidewalk below, but it also contains the distinct allegation that "the roof and eaves" of the defendant's building "project over and into Elm street," thus charging the defendant with maintaining a nuisance, in violation of express statutory law. The demurrer to the second count must, therefore, be overruled.
If the allegation of the projection of the eaves and roof over and into the street should be proven on the trial of the cause, the plaintiff will be entitled to a verdict, without any evidence of actual negligence or want of care on the part of the defendant being required.
The existence of the nuisance, and the injury therefrom to a person using ordinary care on his part, are sufficient to sustain an action against the author or maintainer of the nuisance. Shearman Redfield on *Page 61 Negligence, sec. 363, and authorities cited; Elliot v. Concord, 27 N.H. 208.
Independently of this consideration, I am not prepared to hold that the mere fact of the injury to the plaintiff from the falling of the ice from the defendant's roof is anything more than evidence competent for the consideration of the jury upon the question of the defendant's negligence. I am not prepared to say that it is prima facie evidence of negligence, in so far as evidence thus denominated is sometimes said to be sufficient to require the defendant to assume thenceforward the burden of proof, or to rebut any presumption arising from the fact. The fact raises no presumption, nor touches the burden of proof. It is evidence simply, which, with or without other evidence bearing upon the general question of negligence, the jury may consider and weigh.
The general reasoning of my brother LADD, as expressed in his opinion, seems to me logical and sensible. Certainly, it is not opposed to any authority in this state, though its results have not been expressed as settled law.
Demurrer sustained as to first count, and overruled as to second.