Whittington v. County Court of Jefferson County

Williams, President: William MeSherry was driving along the Smithfield and Shepherdstown Turnpike, one of the public macadam roads of Jefferson county, about ten o’clock at night, with his wife and cousin, in'a one horse buggy, when his horse suddenly became frightened, from some unknown cause, and swerved onto a pile of crushed stone deposited by the roadside and overturned the buggy, throwing the three occupants out and injuring Mr. MeSherry. He sued the county court of Jefferson county and recovered a. judgment for $550.00 damages, and it brings the case here on writ of error. A motion to dismiss the writ of error is made on the ground that, after judgment in the court below and before application was made for the writ of error, the plaintiff died, and there was no revival of the judgment. The practice both in Virginia and in this State has been to proceed with the case on writ of error or appeal, as the case may be, as if the judgment creditor were still in being, and to issue process against his personal representative, when he is designated in the petition, which was done in this case. Phares, Ex’r., v. Saunders, 18 W. Va. 336; Butcher v. Kunst, 65 W. Va. 384; and City of Charlottesville v. Stratton’s Adm’r., 102 Va. 95. The motion to dismiss is therefore overruled. It is proven that the horse was well broken to the buggy, was reasonably gentle; that plaintiff was exercising ordinary care in driving when the accident occurred; that the night was dark, but light enough to see the road just in front of the [3] horse; that the used portion of the highway, or roadbed, at the point of accident, was 15 feet wide and smooth; that the pile of crushed stone was 21 feet long, 10 feet wide and 2-y2 feet high, and sloped near to the edge of the roadbed, some of the witnesses say within two or three feet of it, and the photographs introduced in evidence show a strip of ground between the pile of stone and the edge of the road, and some witnesses say a few stones had rolled into the road and had been ground up by the wheels of passing vehicles; that, the entire right of way is 44 feet wide, extends some distance on either side of the road, and that the surface of the ground is practically level near the stone pile; that the crushed stone was intended to be used in repairing the road when and where it might need it, and was deposited there a year or more before the accident, but whether by some county official or a third party is not material; that plaintiff lived in the neighborhood, passed the stone pile frequently and knew of its existence, in fact, that he had passed it on the same evening he was hurt and only a few hours before. In view of the uncontradieted evidence clearly proving the size and shape of the pile of macadam, its location relative to the used portion of the highway, the general character of the ground and the width of the used portion of the highway at •the place of accident, the question presented is one of law rather than fact. The statute, Sec. 56a (49), Ch. 43, Barnes’ Code, makes a county court liable to anyone who sustains an injury in person or property “by reason of a public road * * * being out of repair.” This statute has been held to impose an absolute liability, that is, a liability not necessarily depending on the negligence of a public official whose duty it is to keep the road in repair, but depending on the fact of its being out of repair. But the words, ‘ ‘ out of repair, ’ ’ must be given a reasonable interpretation. They have been held to include obstructions in the road, failure to maintain guard rails along a walled approach to a bridge, as well as defects in the surface of the roadbed. Reasonably construed, they mean the same thing as, “not being in a reasonably safe condition for travel in the ordinary modes, by day or by night.” The legislature is presumed to have had knowledge of the [4] generally existing condition of the highways throughout the various counties of the state, when it enacted the law, and evidently knew that no county in the state kept, or attempted to keep, the full width of the entire right of way free from obstructions and in a condition to be traveled over. It knew that roads of variable width were maintained over the highways and never intended to impose upon county courts the duty of maintaining the entire width of the right of way in a fit condition for travel. The same measure of liability that is applied to a city can not always be applied to a county court, for the reason that a city invites the public to use the whole width of its streets, by opening them to travel and undertaking to keep them in condition for use, from curb to curb. Hence, a stricter rule is applied in a case of injury resulting to a traveler from an obstruction on the street, than should be applied to a county court in a ease of injury resulting from, an object on a county road, but not in the used portion thereof. The universal custom of the county courts is, to keep, or at least, try to keep only such portion of the right of way in condition for travel as will sufficiently accommodate the public, and to keep such portion in good condition is all the law requires of them. Hence this case is not governed by Rucker v. City of Huntington, 66 W. Va. 104, and similar cases allowing recoveries against cities and towns. Neither is it controlled by the decision in Rohrbough v. Barbour County Court, 39 W. Va. 472, on which plaintiff’s counsel mainly relies. There, plaintiff was injured on a dark* night, by his horse suddenly taking fright and backing the vehicle over the wall of an approach to a bridge. No guard rails were used, and because of the high wall and narrowness of the road oyer the approach, the court evidently concluded the road was dangerous, and therefore held that guard rails were necessary. The court’s decision was necessarily based on such holding in that case, i. e., that the used roadway itself was not in a reasonably safe condition for travel, for the reason that there were no guard rails along the walls of the approach. In the present case the traveled roadway was fifteen feet wide and thS surface smooth, and the ground on either side [5] of the place where the injury occurred was almost level. There was, therefore, nothing to suggest any danger at that point; and, if plaintiff’s horse had not become frightened and ran upon the rock pile, no injury would have resulted; a tree, a stump or a natural rock projecting above the surface, instead of the rock pile, could have produced the same result, or even a more serious injury, and the law certainly would not, in such case, hold the county court liable. If it did, then the way of the county courts would be hard indeed, for there are no county highways within the limits of the state that would measure up to such a test. Every case of this kind must be determined by its own peculiar facts. Our conclusion is that the uncontradicted facts in this case clearly show that the road, where the accident occurred, was not out of repair, but was, in the meaning of those words, in a reasonably safe condition for travel in the ordinary modes, both by day and by night, and that plaintiff’s injury was the result of an accident, for which the county court is not liable. There being no evidence to support the verdict, the court should have sustained defendant’s demurrer to the evidence and entered judgment for it, and such will be the order of this court.