Arthur v. The City Of Charleston.

• Decision Date: 08 March 1902
• Court: West Virginia Supreme Court
• Parties: Arthur v. The City of Charleston.

51 W.Va. 132

Arthur

v.The City of Charleston.

Supreme Court of Appeals of West Virginia.

Submitted January 11, 1902.

Decided March 8, 1902.

Cities Defective Highways.

It is the positive duty of a municipality to keep its highways free from obstructions and defects, dangerous to travel thereon in the ordinary modes, to those using reasonable care and prudence, and it is not necessary to allege or prove that the city had notice of such obstructions or defects, (p. 134).

Obstructions Warning to Public.

In cases of temporary necessity a municipality may allow obstructions on the public sidewalks or streets, but the traveling public should be warned of and protected against the same in some proper manner, (p. 135).

Intoxicated Traveller Question of Fact.

Whether a person is so intoxicated as to be unable to exercise ordinary care or prudence is a question of fact for the jury and unless plainly against the preponderance of the evidence its finding will not be disturbed, (p. 135).

Instructions Effect of.

Though proper instructions may be refused, yet if other instructions are given covering the same questions and to the same effect such refusal is not reversible error, (p. 136).

Error to Circuit Court, Kanawha County.

Action by E. H. Arthur against the City of Charleston. Judgment for plaintiff. Defendant brings error.

Affirmed.

II. D. Rummel, for plaintiff in error.

E. W. Wilson and W. IT. Morris, for defendant in error. Dent, President:

The City of Charleston complains of a judgment in favor of R. H. Arthur for the sum of one thousand dollars rendered by the circuit court of Kanawha County the 24th day of April, 1900, on the verdict of a jury.

The plaintiff Arthur was tripped up by a rope stretched across the pavement on the south side of Kanawha street and fastened to a telephone pole for the purpose of holding the wharf boat during a flood in the Kanawha Eiver. He sued the city for the damages occasioned thereby, and after the case had once before been in this Court and remanded for trial recovered the present judgment. The defendant by demurrer to the declaration, plea and instruction raises two principal questions: First, as to whether the defendant was bound to have reasonable notice of the obstruction before being liable for negligence in not removing, marking or barricading the same, and the second, as to whether the plaintiff was guilty of contributory negligence by reason, of intoxication.

The first question is one of law for the court, the second of fact for the jury.

The question of law was pointedly presented by instruction, in the case of Hesscr v. Town, of Grafton, 33 W. Va 547. Judge Snyder on page 552 says with regard thereto, "It may not, however, be improper to say that according to the principles decided by this Court in Chapman v. Milton, 31 W. Va 384, and Riggs v. Huntington, 32 W. Va. 55, we do not think the court erred in refusing to give to the jury the instructions requested by the defendant." Yet the same judge had said in the case of Curry v. Mannigton, 23 W. Va. 19, "But as the question of notice may arise on the new trial, it may be proper to state that the general rule on this question is, that notice to the corporate authorities either express or implied must be shown. If the defect causing the injury had existed, for such length of time that proper diligence would, have discovered it, then no notice need be proven; but if the defect arise otherwise than from faulty structure or the direct act of said authorities or their agents and be a recent defect, it is generally necessary to show that the town authorities had knowledge thereof a sufficient time before the injury to have by reasonable diligence repaired it, or that they were negligently ignorant of it." The court's attention was called to this in the Hesser Case, but it was passed by except as before stated. This then must be considered the general rule subject to the modification of our statute. In the case of Gibson v. City of Huntington, 38 W. Va. 177, this Court approved the holding in the case of Chapman v. Milton, cited, that "A municipal corporation is absolutely liable for injuries caused by its failure to keep in repair the streets, alleys, sidewalks, roads and bridges," and the word repair was recognized to mean obstructions on the highway, as well as defects in it without regard to the manner in which or by whom such obstructions were placed there. In short that it was the positive duty of the municipal authorities to keep such vigilant watch by day and night over the highways under their charge; that they would be free from both obstructions and defects and in a reasonably safe condition for travel in ordinary modes with ordinary care at all times. Hence the municipal authorities are bound to take notice of any obstruction on its highways, and if they fail to do so, they are guilty of negligence, and the municipality is liable for the damages resulting therefrom. It is unnecessary therefore to allege or prove such notice. This may seem a harsh imposition on the taxpayers of the municipality. They are made responsible for the negligence of their officers as their agents. It is thus incumbent upon them in selection of such agents to use such, discretion as will secure efficient, vigilant and upright men who will be true to their trust. Otherwise they must foot the bills and pay as they go. Under this law it must be assumed that the municipal authorities were cognizant of and either tacitly or affirmatively permitted the placing of the rope across the sidewalk. This they had a right to...