Wilson v. City of Wheeling
| Decision Date | 25 March 1882 |
| Citation | 19 W.Va. 323 |
| Parties | WILSON v. City of WHEELING. |
| Court | West Virginia Supreme Court |
Submitted Jun. 3, 1880.
1. A motion for a continuance is addressed to the sound discretion of the court under all the circumstances of the case; and although an Appellate Court will supervise the action of the court below on such motion, it will not reverse a judgment on that ground, unless such action is plainly erroneous. (p 328.)
2. To entitle a party to a continuance on the ground of the absence of a witness, it must be shown, that the party has used due diligence to procure the attendance of the witness; that he is a material witness; that the same facts cannot be proved by any other witness in attendance; and that the party making the application cannot safely go to trial in the absence of such witness. (p. 328.)
3. It is a principle of nearly universal acceptation in this country, that when a city or town is incorporated and is given control over the streets and walks within its corporate limits, and is empowered to provide the means to make and repair them, the corporation not only assumes this duty but by implication agrees to perform it for the benefit and protection of all, who may have occasion to make use of these public easements; and that for failure in the discharge of this duty the corporation is responsible to the party injured. (p. 331.)
4. A municipal corporation is not an insurer against accidents upon the streets and sidewalks. Nor is every defect therein though it may cause the injury sued for, actionable. It is sufficient if the streets (which include sidewalks and bridges thereon) are in a reasonably safe condition for travel in the ordinary modes by night as well as by day, and whether they are so or not is a practical question to be determined in each case by its particular circumstances. The ground of the action is either positive misfeasance on the part of the corporation, its officers, or servents, or by others under its authority in doing acts, which cause the streets to be out of repair, in which case no other notice to the corporation is essential to its liability; or the ground of the action is the neglect of the corporation to put the streets in repair, or to remove obstructions therefrom, or to remedy causes of danger occasioned by the wrongful acts of others. (p. 332.)
5. Where a dangerous excavation is made and negligently left open (without proper lights, guards or covering) in a traveled street or sidewalk by a contractor under the corporation for building a sewer or other improvement the corporation is liable to a person injured thereby although it may have no immediate control over the workmen. (p. 334.)
6. Where the work contracted for necessarily constitutes an obstruction or defect in the street of such a nature, as to render it unsafe or dangerous for the purposes of public travel, unless it is properly guarded or protected, the employer equally with the contractor engaged to perform is liable therefor to the injured party. But the employer is not liable where the obstruction or defect in the street causing the injury is wholly collateral to the contract-work, and entirely the result of the negligence or wrongful acts of the contractor or his servants. (p. 336.)
7. Whether a street of the city was opened by it on paper, or by condemnation or by dedication, it should not be held, that it is the duty of the city forthwith to regulate and grade it or that the city, when it commences to improve such street by grading, & c., has not the right to temporarily obstruct it so far as necessary for the purpose of grading and putitng it in convenient and safe condition for the use of the public without liability for such necessary interruption of travel and inconvenience to the public. (p. 347.)
8. But while for the purpose of grading such street the city might temporarily obstruct the passage of travel over the same, it is not authorized to leave such street, while undergoing such improvement in such a condition, as unnecessarily to expose those, who may pass upon it, to inconvenience or danger. At such a time such street should not be left without protection or guard or beacon, especially at night, to warn passers against such uncommon danger. (p. 347.)
9. If such reasonable precautionary measures are not adopted for the safety of the citizens and travelers, the city is culpable and liable for injuries, as it is, when it permits one of its graded streets to become unsafe for want of repairs. (p. 347.)
10. The same principles necessarily apply, where the city temporarily obstructs the passage of travel, & c., over one of its graded streets in making necessary or proper repairs thereof. (p. 348.)
11. The same principles apply, where such temporary obstruction is made by contractors, who contracted with the city to do the work, or where such contractors are directed by an officer or officers of the city, authorized by the city to give such direction to do the work, which causes the obstruction, and the work is accordingly done, and the work contracted to be done or so directed to be done necessarily renders the street unsafe and dangerous for passage. (p. 348.)
12. If the authorities of a city have treated a place as a public street taking charge of it and regulating it, as they do other streets, and an individual is injured in consequence of the negligent and careless manner, in which this is done, the corporation cannot, when it is sued for such injury, throw the party upon an enquiry into the regularity of the proceedings, by which the land became a street, or into the authority, by which the street was originally established. (p. 349.)
13. In actions against the city to recover for injuries occasioned by its streets being out of repair and the like, compensatory damages only should be given. Vindictive or punitive damages cannot be recovered against the city in such cases. (p. 350.)
14. In such cases there is a rule for the measurement of damages, and the rule is substantially, that the damages must be measured by the loss of time during the cure and expenses incurred in respect to it, the pain and suffering undergone by the plaintiff, and any permanent injury, especially when it causes a disability for further exertion in whole or in part and consequent pecuniary loss. (p. 350.)
Writ of error and supersedeas to a judgment of the circuit court of the county of Ohio, rendered on the 29th day of August, 1878, in an action of trespass on the case in said court then pending, wherein Margaret Wilson was plaintiff, and The City of Wheeling was defendant, allowed upon the petition of said city.
Hon. Thayer Melvin, judge of the first judicial circuit, rendered the judgment complained of.
HAYMOND, JUDGE, furnishes the following statement of the case:
This is an action of trespass on the case brought by the plaintiff against the defendant to recover damages for an injury alleged to have been received and sustained by her by her falling into an opening in a certain road and common public highway called Charles street in the City of Wheeling, made for the purpose of constructing a sewer or culvert crossing said street. The plaintiff's damages are laid in the declaration at $5,000.00. The action was originally brought in the county court of the county of Ohio in December, 1874. In April, 1875, the defendant appeared in court to the action and demurred to the plaintiff's declaration, and the plaintiff joined in the demurrer. The county court overruled the demurrer to the declaration, and thereupon the defendant pleaded not guilty, and issue upon the plea was duly joined. It was agreed between the parties, that the defendant might give in evidence at the trial of the cause any matter, which it might have pleaded specially. At the same time a trial of the case was had in the county court before a jury upon the issue joined; and the jury rendered their verdict, by which they assessed the plaintiff's damages at $1,350.00 It appears, that after the verdict was rendered, the defendant moved the court to set aside the verdict and grant a new trial, because the same was contrary to law and the evidence and because the damages were excessive. It also appears, that the defendant excepted to various opinions of the court during the trial including instructions of the court, and a number of bills of exceptions were duly signed and sealed by the court and made a part of the record at the instance of the defendant. On the 21st day of October, 1875, the county court overruled the defendant's motion for a new trial and rendered judgment for the plaintiff upon the verdict of the jury and for the amount thereof and the plaintiff's costs, to which the plaintiff excepted, & c. It appears, that afterwards such proceedings were had upon a supersedeas, that on the 2d day of June, 1877, the circuit court of said county of Ohio set aside the said judgment of the county court and granted a new trial in the case and retained the case in the circuit court for trial. It further appears, that afterwards on the 20th day of May, 1878, the parties appeared in the circuit court by their attorneys, and the defendant moved the court for a continuance of the cause " on account of the absence of material witnesses; " but the court overruled the motion and the defendant excepted by bill of exceptions in due form to the action of the court in this respect; and thereupon the issue was tried by a jury in the circuit court, and the jury by their verdict found for the plaintiff and assessed her damages at $3,666.66 2-3. Whereupon the defendant moved the court to set aside the verdict and grant it a new trial. Afterwards on the 29th day of August, 1878, the said circuit court overruled the defendant's motion for a new trial and...
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