Biggs v. Huntington

Green, Judge : . In this case the question is raised as to the civil liability of a municipal corporation for an injury to a private person, caused by defective streets and sidewalks. ' The city of Huntington, the defendant, is a municipal corporation subject to section 53, c. 43, Code W. Va. 1887, p. 331, which provides, that “any person, who sustains an injury to his person or property by reason of a public road'or bridge in a county or by reason of a public road; bridge, street, sidewalk or allej1’ in an incorporated city, village or town being out of repair may recover all. damages sustained by him by reason of such injury in an action on the case in any court of competent jurisdiction against the county court, city, village or town, in which such road, bridge, street or sidewalk may be, except — 61 — that such city, village or town shall not be subject to such action, unless it is required by its charter to keep the road, bridge, stfeet, sidewalk or alley therein, at the place where such injury is sustained, in repair.” It will be observed, that the statute in express terms makes the town liable for damages for injuries sustained by reason of a defect in. a public.street or sidewalk. The language is unqualified and without exception or limitation; and therefore the question of notice of want of care on the part of the town is altogether immaterial. If the street or sidewalk was in fact defective, and such defect caused the injury to the plaintiff, it is no defence on the part of the town, that it had exercised great care in repairing the street or sidewalk. It is only necessary in such suit to allege and prove the existence of the defect, and that the injury was occasioned thereby. See Sheff v. Huntington, 16 W. Va. 307; Chapman v. Town of Milton, 31 W. Va. 384, (7 S. E. Rep. 22.) See, also, Shear. & R. Neg. § 389. It is true, that the.rule is otherwise in the case of towns or municipal bodies, upon whom no such absolute liability is imposed by their charter or by statute-law. They are only bound to exercise ordinary care and vigilance in keeping their streets in repair. And therefore before they can be made liable for injuries caused by a defect'in a street or sidewalk not arising from its construction or from some act authorized by the corporation, either express notice of the .nuisance or defect must be brought home to it, or the defect must be so notorious as to be observable by all for a sufficient time to enable the corporation to repair. Shear: & R. Neg. § 407; 2 Dill. Mun. Corp. § 1029. In such cases it is essential, that the plaintiff should both allege and prove-notice to the corporation of the defect, which caused the injury. But in' the other case it is not necessary. See Noble v. City of Richmond, 31 Gratt. 271; Chapman v. Town of Milton, 31 W. Va. 384; (7 S. E. Rep. 23.) The defect, which caused the injury to the plaintiff's property — the killing of his horse by his falling into a well — was not precisely adjacent to any street or sidewalk of the city of Huntington. But the well was situated on the north, side of Third avenue in the corporate limits of the city of Hunt — 62 — ington about one foot north of the northern limits of the sidewalk along this avenue. It was uncovered and unguarded by any fence separating the sidewalk or avenue from it or surrounding the mouth of the well; and travellers along this avenue or sidewalk were not notified of the danger resulting from the fact, that there was an open well within one foot of said avenue and sidewalk either by exposure of a light or the display of any other signal of danger. There was opposite this well on the south side of the avenue a plank sidewalk usually used by foot-passenges, but there was no sidewalk on the north side of the avenue, where the open well was located. The sidewalk there was nothing but the natural dirt on a level with the open mouth of the well; and it was separated from the portion of the Third avenue used by vehicles and by travellers in vehicles only by a shallow gutter three or four inches deep and some three feet wide; so that the traveller along Third avenue had nothing in the way of a curb-stone or in any other form to indicate to him, where the northern border of the avenue began. There was nothing in fact to indicate to the traveller, when he had left Third avenue and was driving on the sidewalk along the northern border of the avenue, or when he had left it and was driving on uninclosed ground on the north of the sidewalk and on the same level with this sidewalk. Under these circumstances Dr. Beardsly, a physician in the employmeut of the city of Huntington to attend certain paupers in the limits of the city, was on the night of September 25,1886, at about ten o’clock called upon to attend one of the paupers. He got into his buggy, to which was hitched the plaintiff’s horse worth about $200.00. He drove down Third avenue in the city of Huntington, until he got to a point opposite, where this sick pauper lived. Some one in the front door of her house, which was about ten yards north of the northern limits of this avenue, called to him and told him, that that was the place and asked him to come in. He therefore turned short at right angles in this Third avenue and drove across this dirt sidewalk, not separated from the avenue by any curb or in any other manner, his purpose being to drive across the ten yards intervening between the north line of this sidewalk and the fence surrounding this — 63 — pauper’s lionse and hitch his horse to this fence. The horse barely crossed this sidewalk, wheu his front feet sank down in the open well, and shortly afterwards his other feet also sank down in this well. The doctor and a young naan, who was with him'in the buggy, jumped out and united in their efforts to save the horse. These efforts detached him from the buggy, and the horse then fell into the well and was killed. Hone of the city-officials directed the doctor to pay this visitto this pauper, but he often went to see patients of thé city without any special direction from any of the city authorities. There was no fence between the line of the street and this well and no barrier, guard or signal-light at the well. The doctor was ignorant of the existence of this open well, and while he knew, that in driving across the sidewalk to hitch his horse to the fence around the pauper’s house, he would quit this Third avenue, still he knew also, that horses sometimes in going along this Third avenue quit its nominal boundaries, as he was doing, and drove on this open unin-.closed ground on the north side of this avenue. In doing this he did not know he was incurring any danger, as he knew nothing of the existence of the well. It was proven that the mouth of the well was sometimes covered and sometimes not. There was no fence separating the mouth of this well from this Third avenue for about thirty feet. The city of Huntington, the defendant in error, insists that Hr. Beardsley, who had charge of the plaintiff’s horse at the time it fell into the well, drove out of Third avenue intentionally and knowingly for his own convenience to tie his horse to the fence of a vacant lot; and that, if a travel-ler without necessity or for his own convenience or pleasure deviates from the travelled track, which is in good condition, and in so doing meets with an accident outside of such track, the town is not liable for any resulting damages. Wharf Neg. § 968. There are certainly authorities which give more or less countenance to these views. See Keyes v. Village of Marcellus, 50 Mich. 439 (15 N. W. Rep. 542); City of Scranton v. Hill, 102 Pa. St. 378 ; Sykes v. Piwlet, 43 Vt. 446. There are, however, numerous cases where a traveller, though he meets with an accident off from the public street, has nevertheless recovered of the town the damages — 64 — be has sustained, when sustained very close to the edge of the public highway. The following were cases of this description: Niblett v. Nashville, 12 Heisk. 684; Turnpike Co. v. Crockett, 2 Sneed 271; Memphis v. Lasser, 9 Humph. 757; Burnham v. Boston, 10 Allen 290; Hill v. Boston, 122 Mass. 349. .■ "We think, the true rule to be deduced from these cases is, that, if either'ah obstruction, excavation or hole be permit-tee! by a town to exist though not actually within one of the public streets of .the town yet so close to such á street as to produce danger to a traveller or passenger, who is using such highway or sidewalk prudently and properly, the corporation is liable for an injury for permitting such nuisance, though it be only close to the street and not immediately in such street. • My conclusion is that, if this open well was near enough to'the travelled highway — Third avenue in Huntington city —to render the travelling on this highway dangerous ; if this well uncovered and without barriers or fencing and without signal-lights to warn travellers left in - this" condition by-the city of Huntington became the cause of the.horse of the plaintiff falling into said well, while Dr. Beardsley was using •this Third avenue in a prudent manner in the same way, that it was commonly used by travellers, — 4he city would be ■responsible.. The question, then, is whether Dr. Beardsley turning out of Third avenue and tying his horse, as was frequently done, to a fence within a short distance from this highway and not separated from it by an obstruction ceased to be- a traveller, not meeting with the accident in attempting to use this avenue as a thoroughfare. This was, it seems to me, a question for the jury to decide, and it seems to me, that in deciding, that he did not intend to leave the highway and cease using it, they were sustained by the evidence, which showed, that, when the accident occurred, the buggy was still'in this highway or on the sidewalk, and the horse not more than one foot from the northern edge .of the highway and separated from it by no fence, curb or anything else. I am therefore of opinion, that the Circuit .Court should have approved and •affirmed the judgment of the justice, E. M. Underwood, ren — 65 — dered Oct 10, 1887, and should have rendered a judgment, that the plaintiff below, William Biggs, Sr., recover of the defendant below, the city of Huntington, his costs in the Circuit Court of Cabell county incurred, and damages according to law. But the other members of the court are of opinion, that on the evidence in the case the jury was not justified in deciding, that Hr. Beardsley did not intend to leave the public highway and had not ceased using it as a public highway, when and where the accident occurred. And certainly it would be difficult to draw such conclusion in view of the fact, that Hr. Beardsley himself testified, “that he turned short in Third avenue and drove across the sidewalk for the purpose of hitching horse and buggy to the fence on a lot by the side of the house he was going to, which fence was outside the line of the street, and some thirty feet from the north line of the street, and he knew he was driving towards the fence.” The necessary conclusion, they think, from this evidence is, that he without necessity and for his own convenience purposely left the travelled track of Third avenue, and that by so doing he met with this accident of the horse falling in this well; and that, if this was so, and 'the jury could not on the evidence find otherwise, then the city was not responsible, no matter how close the open well was to Third avenue; and therefore the verdict of the jury was so contrary to the overwhelming weight of the evidence, that it ought to have been set aside by the justice, and a new trial awarded, and the Circuit Court should have reversed the judgment of the justice for the amount found for the plaintiff' by this verdict. I admit, that the decided weight of the evidence was opposed to the verdict found by the jury, though I do not concur with the other judges, that it was so overwhelming as to require us to set aside the verdict, though the justice, who heard the evidence, refused to do so. The Circuit Court, in the opinion of a majority of this Court, did not err in reversing the judgment of the justice and in setting aside, reversing and annulling the verdict of the jury. But all the members of our court are of opinion, that the Circuit Court did. err in dismissing the action of the plaintiff'and rendering a — 66 — judgment in favor of the defendant against'the plaintiff for its costs including five dollars allowed by statute. The verdict of the jury having been set aside, no judgment could properly be rendered, until the ease has been again tried by7 a jury either before a justice or before the Circuit Court. As the court below has not acted on the question, whether this new trial should be had in the Circuit Court or before the justice as a court of review, we express no opinion on this point, but, will simply reverse the decision of the Circuit Court at the costs of the defendant in error, and remand the case to the Circuit Court, to bo there proceeded with according to the principles laid down in this opinion, and further according to law. Reversed, RemaNded.