Stanton v. City of Parkersburg

Williams, Judge: About nine o’clock on the night of June 12th, 1907, George W. Stanton was going along Murdock Avenue, one of the public streets in the City of Parkersburg, and was tripped by a wire netting stretched across the sidewalk to protect a piece of recently made cement sidewalk in front of the property of J. W. Jones, and was thrown down and hurt. He brought, an action against the city for negligently causing the injury, and on the 12th of ¡March, 1908, recovered a verdict and judgment for $550.00. To this judgment defendant obtained a writ of error and supersedeas from this Court. A number of errors are assigned as cause for a reversal. The first is the overruling of the demurrer to plaintiff’s amended declaration. We see no error in this; the amended declaration states a good cause of action. The second, third and fourth assignments relate to the action of the court in overruling defendant’s motion to exclude, plaintiff’s evidence and direct a verdict for defendant, and overruling its .motion to set aside the verdict and grant a new trial. Bill of exceptions No. 3 makes the evidence a part of the record; and, without expressing any opinion in regard to the weight of the. evidence, we may very properly say that these bills of [395] exceptions show no error. The evidence, apart from agreed facts, consists altogether of the testimony pf witnesses; and the rule of law making the jury the sole judges of the credibility of witnesses and of the weight of evidence has been so often repeated, and is so well understood, that we need only to mention it. We can shed no new light upon it by discussing it. It is proven that the cement walk upon which plaintiff fell was surrounded by a poultry wire netting which extended along the curbing and across the sidewalk at either end. This netting was about four feet' high, and was made of wire about the size of a broom straw. The walk was laid for one J. 'W. Jones by a contractor by the name of M. G-. Jenkins. The wire netting was held in place by stakes driven in the ground near the curbing at either end of the cement walk and the two ends drawn around these stakes and across the sidewalk and securely fastened to a house, or some other object. It was placed there on the 8th of June, when the work was completed, and remained there until the 13th. Plaintiff was injured on the night of the 12th about nine o’clock. Section 53, chapter 43, Code, makes it the duty of the city to keep its streets and sidewalks in repair and free from' dangerous obstructions, and if it fails to do so, and injury results, it is liable. A city may permit temporary obstructions of its streets and sidewalks, in cases of necessity, but it is bound to take proper precaution to warn the public against the danger occasioned by the obstruction. Edwin Howe, an employe of Mr. Jenkins, testified that on the night plaintiff was hurt, and just before dusk, between seven and eight o’clock, he had put up two lights, one at either end of the netting. This is the only testimony on behalf of defendant to show that any signal lights were placed on the wire on the night of plaintiff’s injury. The plaintiff and a number of other witnesses introduced by him testified that no lights were there when he was injured. F. M. Barringer says that he went down town about eight o’clock on the night of the accident and went back about nine o’clock; that he passed by the place, and that there were no lights. Samuel McConaughey states that he was coming up the street about fifteen feet behind Stanton and saw him fall oyer the wire; that in going to assist Stanton he came near [396] falling over the wire himself: that he pressed the wire down, a little, got over it and helped Stanton up from the pavement; and he says there were no lights. A boy, John Wolfe, was with McConaughey at this time, and he says they were not miore than a quarter of a square away from Stanton, and heard him fall. He says there were no lights there. W. T. Iiupp says that he passed along about Uve or ten minutes before plaintiff got hurt and ran into the wire himself. He also says there were no lights. A. J. McFarland says that he passed the place about half past seven o’clock of the same 'evening; that it -was not then dark, and that there were no lights there at that time. We admit the force of counsel’s argument, that it is hard to understand how a man of ordinary height could be 'tripped on such a netting and, in falling, fall over it; provided it was upright and was drawn as taut at the top as at the bottom. But its condition in this particular does not appear, and if the stakes were not kept firm and upright, the top wire would become slackened and the netting wlould lean over; if such was its condition at the time plaintiff was hurt, his feet very probably struck the bottom of the netting before his body touched the top ; and, if walking rapidly, as plaintiff says he was, he would be very likely to fall; and, in falling, would fall over the wire. The fact that he did fall over it is not denied by any witness. Witness McConaughey saw him over the netting and helped him up. J. W. Jones, a witness for the defendant, says that he learned of the accident about noon on the following day, and found a spot of blood on the sidewalk about eighteen inches from the netting on the inside of it, and that he took the hose and washed it off. Plaintiff testified that in the fall, he knocked out six teeth, lacerated his face and ear; that he bled a great deal from his nose and ear, and that the hurt he received has permanently impaired his hearing in one ear. Bills of exception's Nos. 6 and '7, relate to the giving of plaintiff’s instructions Nos. 7 and 6. We do not think the court erred in giving either of them. Instruction No. 6 is as follows: “The Court instructs the jury that while the defendant had the right to temporarily obstruct the passage of travel over the sidewalk where the plain397 tifE's injury is alleged to have occurred, for the purpose of grading and paving the said sidewalk, it was not authorized to leave or permit to be left said obstruction while undergoing such grading or paving in such condition as unnecessarily to expose those who might pass upon it to danger, and that in such condition, said obstruction or sidewalk should not have been left without signals or beacon lights, especially at night, to warn travellers of its condition against such danger, and that-if, the jury believe from the evidence that such reasonable and precautionary measures were not adopted for the safety of such citizens or travellers, and the defendant by reasonable diligence could have ascertained that fact, the defendant was 'culpable and is liable for injuries, if any, resulting to the plaintiff therefrom; if without such knowledge and without any fault on his part, he was injured thereby.” This instruction correctly propounds the law applicable to the case. It submits to the jury the question whether, or not, the city had taken the proper precaution to warn pedestrians of an obstruction on its sidewalk which was liable to cause injury if no signal of .warning was used, and also the otiher 'question whether, or not, the plaintiff himself was in fault, or was guilty of contributory negligence. Both of these questions were for the jury to decide upon the evidence. This Court has held a number of times that section 53, chapter 4-3, Code, imposes an absolute liability upon cities and towns for injury resulting • from failure to keep its streets in repair and free from obstructions. Biggs v. Huntington, 32 W. Va. 55; Arthur v. City of Charleston, 51 W. Va. 132; Chapman v. Milton, 31 W. Va. 384; Bowen v. City of Huntington, 35 W. Va. 682. There being an absolute liability on the city, it was not material to plaintiffs recovery to show want of reasonable diligence on the part of the city. It was bound to taire notice of the obstruction, and the existence of the dangerous obstruction unguarded. by any signal light, or other warning, was negligence per se. Sheff v. City of Huntington, 16 W. Va. 307; and cases above cited. The jury had to determine, from the character of the obstruction, the darkness of the night, and from the other evidence in relation to the lights, whether, or not, plaintiff was guilty of contributory negligence. Instruction No. 7 relates to the measure of damages,"and [398] tells the jury what facts they may consider' in estimating the ■amount of damages in the event they find in' his favor. It is unnecessary to copy the instruction in this opinion. It is such an instruction as is usually given in such cases' and correctly states the law, and is applicable to the case. Indeed, counsel for defendant seems to have abandoned his objections •to both of the foregoing instructions, as he does not discuss them in his brief. Bill of exceptions No. 5 relates to the court’s refusing to give its instruction No. 2, which is as follows: ‘ ‘'The Court instructs the jury that if they believe from' the evidence in this case that the defendant in the construction of the improvement of the sidewalk at the place named in the declaration had, at the time of the injury complained of, a lantern or beacon light at said place, that the plaintiff was not exercising ordinary care when the said injury occurred and they must find for the defendant.” This instruction states the converse of No. C, given on behalf of plaintiff; and a majority of the Court are of the opinion that it was prejudical error not to give it and, reverse the judgment for this error. But I can not concur in this view. I think the court was justified in refusing'the instruction for two reasons: (1) because plaintiff’s instruction No. 6 covers the entire question of defendant’s nejgligence and plaintiff’s contributory negligence, and in effect, tells the jury that before plaintiff can recover they must believe the city was negligent and that plaintiff 'was not, although according to our decisions construing section 53, chapter 43, Code, plaintiff was not bound to prove the city’s negligence;- defendant’s No. 2 states nothing more than the converse of this proposition; it is a necessary sequence flowing from plaintiff’s No. 6; if the jury did not believe the city was negligent and the plaintiff was careful to avoid injury there was only one thing for them to do; i. e., find for the defendant. I think it would be a reflection on the intelligence of juries to hold that it was necessary to instruct them on a question so self evident as this. If they could not find for the plaintiff, as a matter of course, they had to find 'fdr'the defendant; and this, in effect, is all that defendant’s No. 2 would tell them. It means no more than if the court had said: “if you can not find for the plaintiff you must find [399] far the defendant.” Defendant’s No. 2 presented no different theory, and no different phase of the case than was clearly comprehended in plaintiff’s No. 6. (2) I think the court-was 'further justified in refusing it, because there is ño appreciable evidence on which to base it. The testimony of plaintiff and three other witnesses proves that no lights were on the wire netting when the injury occurred; this testimony is not disputed by any other witness. It is true a witness for defendant says he hung out the lanterns between seven and eight o’clock, but neither he, nor any other witness, says the lights remained there; and I do not think the natural presumption of fact that they remained there where he had placed them and continued to give light, could be considered as evidence conflicting with the testimony of four witnesses to the fact that, at the time the injury occurred, they were not there; one is indirect evidence tending to prove the fact, while the other is 'direct and positive proof of the fact; it was not necessary to disbelieve defendant’s witness in order to find in favor of plaintiff; all the witnesses may have testified truly; the verdict is 'not inconsistent with the truth of the testimony of any witness. But, on the othér hand, a finding for the defendant would have required the jury to disregard all the direct and material testimony in the case; this the jury could not do without good .reason for it, and none appears; they are governed by the evidence, as well as by the law, and I see no appreciable evidence in the case to support the instruction; hence, T think it clearly appears that defendant was not prejudiced by the refusal of the court to give it, and I would affirm the judgment. I do not controvert the law of the instruction; I deny that defendant was prejudiced by its refusal. The judgment of the lower court will be reversed, the verdict set aside and the case remanded for a new trial. Reversed and Remanded.