Childrey v. City Of Huntington

• Decision Date: 12 December 1890
• Citation: 34 W.Va. 457,12 S.E. 536
• Court: West Virginia Supreme Court
• Parties: Childrey . v. City of Huntington.

12 S.E. 536

34 W.Va. 457

Childrey .

v.City of Huntington.

Supreme Court, of Appeals of West Virginia.

Dec. 12, 1890.

Defective Sidewalks—Liability or City—Remote and Proximate Cause.

1. In an action to recover damages for injuries received on account of an alleged defect in a sidewalk against a city or town, the plaintiff must allege and prove that such street or sidewalk upon which the injury occurred was, at the time and place where the injury was sustained, controlled and treated by the town authorities as a public street or sidewalk, and opened as such.

2. In such action, if the plaintiff seeks to prove that the city authorized and directed the property owner to construct the sidewalk at the point where the injury occurred in front of his premises, the records of the city council are the best evidence as to what its action was, unless no such record was made as required by law; and parol evidence should not be received as to such action when said record-books are accessible, and can be produced.

8. If the evidence discloses that the defect in the sidewalk was the remote, and not the proximate, cause of said injury, the plaintiff is not entitled to recover.

(Syllabus by the Court.)

Error and supersedeas to circuit court, Cabell county.

Campbell, Martin & Holt, for plaintiff in error.

Gibson & Michie, for defendant in error.

English, J. This was an action of trespass on the case brought by John Childrey against the city of Huntington, in the circuit court of Cabell county, claiming damages for injuries sustained by him by reason of the defendant negligently allowing and permitting a certain public sidewalk within the corporate limits of said city to become and to remain in bad order and out of repair, in this: that the said defendant permitted a large hole to become and to remain in one of the plank of which said sidewalk was then and there constructed and maintained in front of what is known as the "Mitchell Property, " on Seventh street, near the middle of said sidewalk. The defendant demurred generally to the plaintiff's declaration, and pleaded not guilty; the court overruled the demurrer, and, issue being joined upon said plea of not guilty, the case was submitted to a jury, which resulted in a verdict for the plaintiff for $1,200 damages. When the plaintiff had introduced his evidence and rested his case, the defendant moved the court to strike out all of the plaintiff's evidence, and exclude the same from the jury, because the same was insufficient to maintain the issue on the part of the said plaintiff, and because it showed that the plaintiff was guilty of contributory negligence which alone caused the alleged injury, and because there was no proof or evidence that the sidewalk mentioned in the declaration had ever been a public sidewalk controlled and managed by the said defendant, but the court overruled said motion, and refused to strike out said evidence, and exclude the same from the jury, and the defendant excepted, and thereupon the defendant introduced its witnesses before the jury, and, after the evidence had been concluded, the plaintiff moved the court to instruct the jury as follows: "The jury are instructed that if they believe, from the evidence in this case, that there was such defect in the sidewalk mentioned in, and as is alleged in, the declaration, and that the plaintiff was injured by reason of said defect in said sidewalk of the city of Huntington, and that such sidewalk was in the corporate limits of the defendant, and that the town or city authorities of the defendant had used and treated such sidewalk as a public sidewalk, then they should find for the plaintiff such damages as will compensate for his injury, unless they further believe from the evidence that the plaintiff's own negligence contributed to the injury." To the giving of which instruction, the defendant, by his attorney, objected, but the court overruled the objection, and gave the jury the said instruction, and the defendant excepted; and thereupon the defendant moved the court to give the jury the following three instructions: "(1) The court instructs the jury that it is not every defect in a sidewalk that renders it unsafe and out of repair. It must be such defect as to render the sidewalk unsafe for use in the ordinary mode, and though they may believe from the evidence that the sidewalk mentioned in the declaration at the place therein specified was within the corporate limits, yet they must further believe from the evidence that the city of Huntington had control and treated the same as a public walk. If the said defendant had not controlled or treated the same as a public walk, but this one had been put down by individuals for their own purposes, the city is not liable. (2) The court instructs the jury that the mere fact that the sidewalk complained of was within the corporate limits of the defendant city is not sufficient to charge the city with the duty of keeping it in good repair and safe condition. To charge the city of Huntington, it must be proved that said sidewalk was a public sidewalk so treated or controlled by said defendant. (3) Thecourt instructs the Jury that before the plaintiff can recover in this case, they must believe from the evidence that there was a hole in one of the planks of which the sidewalk complained of was composed and a piece broken off the edge of one of such planks is not such defect as is complained of." To the giving of said instructions, and each of them, the said plaintiff objected, which objection the court overruled as to said instructions numbered 1 and 2, and sustained the said objection as to instruction No. 3, and refused to give said instruction to the jury, and the defendant excepted to the action of the court in sustaining the objection to said instruction No. 3; and the jury having rendered a verdict for $1,200 damages, as aforesaid, the defendant moved the court to set aside the said verdict and grant it a new trial on the grounds that the said verdict was contrary to the law and evidence, and because the court erred in allowing the plaintiff to introduce oral testimony to prove that the sidewalk complained of was a public sidewalk under the control of the said defendant, but the court overruled the said motion to set aside said verdict and grant it a new trial, to which opinion and ruling of the court, and to the several rulings and opinions of the court in overruling the several objections and exceptions and motions made by said defendant during the progress of the trial, said defendant excepted, and thereupon the court proceeded to render judgment upon said verdict, and the defendant applied for and obtained this writ of error.

The first error assigned by the plaintiff in error is that the court erred in permitting oral evidence of acts of control on the part of said city over the sidewalk in question to go to the jury. Our statute (Code, c. 47, § 28) says: "The council of such city, town, or village shall have power therein to lay off, vacate, close, open, alter, curb, pave, and keep in good repair roads, streets, alleys, sidewalks, " etc., " and to order the said sidewalks * * * to be curbed and paved and kept in good order, " and in section 25 of the same chapter it is provided that "the council shall cause to be kept in a well-bound book an accurate record of all its proceedings, bylaws, acts, orders, and resolutions, which shall be fully indexed and open to the inspection of any one who is required to pay taxes to such town or village." Now what is the best evidence of the acts of a municipal corporation? Are they to be determined by the oral testimony of some person, as to his recollection of what was done by the council years before, or are we to have recourse to its records to determine its action? Wharton, on the Law of Evidence, (volume 1, § 640,) says: "In this country we have numerous cases tending to show that official records kept by public administrative officers are as to third parties prima facie evidence of the facts entered duly by such officers in the course of their duties as well as documents recorded, "etc. And in section641 he says, the same authority is assigned to the records of town-meetings, to the books of municipal corporations, and to the books of the selectmen of the town, proving pay ments in support of a pauper, etc. In the case-of Chapman v. Milton, 31 W. Va. 385, 7 S. E. Rep. 22, this court held that, ...