Burke v. County

Bbannon, Judge: G. 0. Burke brought an action against the county court of Jackson county to recover for damage to a steam wheat thresher by the breaking down of a wooden culvert or bridge on a public road, and having recovered verdict and judgment for $125.00', the county court brings the case to this Court. Complaint is made for the overruling of a demurrer to the declaration. The defect alleged is, that it does not sufficiently allege that the county court had opened, controlled, maintained and treated the road as a public highway. The declaration alleges that when the accident occurred, and long before, the county court "used, worked, controlled and occupied” said road and highway, and kept and maintained the wooden culvert over a ravine, and that it was a public road for all. This is a sufficient allegation to charge the county as for a public road. The code, sec. 31, ch. 43, says that every road used and occupied as a public road shall, in all courts, be deemed such whenever its [175] establishment shall come in question. The charge is that the county used, occupied and worked the road. If so, it is a public road. Ball v. Cox, 29 W. Va. 407; Campbell v. Elkins, 58 W. Va. 308. Declaration good under those cases and Waggoner v. Point Pleasant, 42 Id. 798. Various exceptions are made because of exclusion of evidence. We find them not ground of error, especially as it does not appear what was to be proven. We have examined the instructions, We find no error in them. We think as a whole they laid before the jury fairly the contention of the two sides, the question of liability of the county, and .that of contributory negligence. They contain no points of law not already discussed and settled. We see no utility in discussing settled law in every case in which it arises, causing delay in the administration of justice and public expense. In my own opinion much of it could be dispensed with. The brief of the county counsel argues that a county court is not liable absolutely for damage coming from defect in a road, that it is not liable for latent defect, and not liable without notice of defect. We understand that under the Code, sec. 53, ch. 43, the county is absolutely liable, if there is actionable defect. No matter that the defect is latent, or whether the county court knows of the defect or not. Campbell v. Elkins, 58 W. Va. 308; Arthur v. Charleston, 51 W. Va. 132; Yaeger v. Bluefield, 40 W. Va. 407. We affirm the judgment. Affirmed.