Atkinson v. Harman

• Citation: 151 W.Va. 1025,158 S.E.2d 169
• Decision Date: 19 December 1967
• Docket Number: No. 12658,12658
• Court: Supreme Court of West Virginia
• Parties: Rickey W. ATKINSON, a minor, etc., et al. v. Glen HARMAN et al., and Town of Pine Grove, etc.

Page 169

158 S.E.2d 169

151 W.Va. 1025

Rickey W. ATKINSON, a minor, etc., et al. v. Glen HARMAN et al., and Town of Pine Grove, etc.

No. 12658.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 19, 1967.

Decided Dec. 19, 1967.

Syllabus by the Court

1. 'To recover in an action based on negligence the plaintiff must prove that the defendant was guilty of primary negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains.' Point 3, Syllabus, Alexander v. Jennings, 150 W.Va. 629 (149 S.E.2d 213).

2. In order to prove actionable negligence there must be shown a duty on the part of the person charged with negligence and a breach of such duty.

3. 'Liability of a person for injury to another cannot be predicated on negligence unless there has been on the part of the person sought to be charged some omission or act of commission in breach of duty to the person injured.' Point 6, Syllabus, Morrison v. Roush, 110 W.Va. 398 (158 S.E. 514).

4. In an action for personal injuries, if the evidence fails to establish primary negligence, it is the duty of the trial court to direct the jury to return a verdict for the defendant.

James W. Pyles, John J. Mensore, Paul J. Shiben, New Martinsville, for appellants.

Steptoe & Johnson, Herbert G. Underwood, Clarksburg, for appellees.

CAPLAN, Judge.

This civil action was instituted in the Circuit Court of Wetzel County by Warren D. Atkinson, individually and as next friend of Rickey W. Atkinson, his minor son, to recover damages for injuries alleged to have been inflicted from his minor son by reason of the alleged negligence of the defendants, Glen Harman, Russel Harman, Clay Queen and the Town of Pine Grove. The Harmans were partners engaged in the construction business. Clay Queen was their construction foreman for the project involved in this action.

On and prior to November 20, 1963 the defendants Glen and Russel Harman were engaged, under a contract with the State Road Commission, in the relocation of a portion of State Route 20. This construction work was being performed in the Town of Pine Grove near Valley High School. In the course thereof, the defendant contractors were required to raise the elevation of Bank Street which ran perpendicular to the relocated Route 20 and in front of but not adjacent to the high school. This necessitated the construction of a new sidewalk along Bank Street, the said sidewalk and street being built on a grade sufficient to raise them to the level of the new Route 20 at the point where they joined.

Parallel to the new sidewalk and immediately in front of the high school building was another sidewalk which had been in existence over a long period of time. That sidewalk, however, was no longer in use from the schoolhouse in a southerly direction for the reason that at the junction of the sidewalk and the recently constructed Route 20 the walk was at a level six feet below that of the highway. Between these two sidewalks is a fifteen foot strip of land which slopes toward the school. It was on this strip of land that the infant plaintiff was injured.

On November 20, 1963 Rickey W. Atkinson, they twelve years of age, was walking from his home in the Town of Pine Grove to Valley High School in the same community where he was to obtain transportation by school bus to a junior high school which he attended in another community. Rickey crossed the new Route 20 and started toward the school on the new sidewalk. This sidewalk extends from Route 20 in a northerly direction for the distance of the old sidewalk. It then extends at a right angle to the old sidewalk in front of the schoolhouse. The new sidewalk had been paved almost to the place where it turned toward the schoolhouse. When Rickey approached the unpaved portion of the walk, he stepped off the walk in the direction of the schoolhouse and started across the strip of land referred to above. According to the evidence, the contractors had deposited boards on this strip of land which had been used as forms in their concrete work. Rickey testified that he stepped on the boards and that 'they slipped on me' and he fell, seriously injuring his left elbow. By reason of this injury Rickey was hospitalized on two occasions and there is evidence that he has sustained a permanent injury to his left him. It was for this injury that the plaintiffs instituted this action.

In their complaint, the plaintiffs alleged that the injury was caused by the negligence and carelessness of all the defendants in permitting the sidewalks and strip of land between them to become cluttered and strewn with boards, lumber, sidewalk and building materials. It is further complained therein that the defendants were negligent in failing to close the street and sidewalk during the construction and in failing to provide a safe walkway for persons lawfully using the street and sidewalk. After pleadings had been filed and the case matured, trial was begun on May 19, 1966. At the conclusion of the plaintiffs' evidence, the court, on the motion of the defendants, directed a verdict in favor of all the defendants. The court stated as its reasons for directing the verdict: (1) Rickey W. Atkinson assumed the risk; (2) The defendants owed no duty to the plaintiffs; (3) Rickey W. Atkinson was guilty of contributory negligence as a matter of law; and (4) Rickey W. Atkinson was not injured on a public street and that he was in fact a trespasser.

The court further said that the plaintiffs failed to establish a prima facie case and that if there had been a verdict for the plaintiffs on this evidence, such verdict would have to be set aside. The assignments of error on this appeal show the plaintiffs' disagreement with each and every finding of the trial court.

This is an action based on negligence. It is well established by the decisions of this Court that in order to recover in such action the plaintiff must prove that the defendant was guilty of primary negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains. Alexander v. Jennings, 150 W.Va. 629, 149 S.E.2d 213; Pygman v. Helton, 148 W.Va. 281, 134 S.E.2d 717; Burdette v. Burdette, 177 W.Va. 313, 127 S.E.2d 249; Davis v. Fire Creek Fuel Company, 144 W.Va. 537, 109 S.E.2d 144; Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672.

What is the negligence of which the plaintiffs complain? It appears from the complaint that the negligence upon which the plaintiffs rely is that the defendants permitted the sidewalks and the strip of land between them to become cluttered and strewn with boards, lumber and building materials. It is alleged that such condition caused the public street to be out of repair, thereby causing injury to the infant plaintiff.

A municipality, if its charter so requires, is under an obligation to keep its streets and sidewalks in repair and its liability is absolute for an injury caused by any such way that is allowed to fall into disrepair. See Code, 1931, 17--10--17, as amended, applied in Jones v. City of Mannington, 148 W.Va. 583, 136 S.E.2d 882. However, in the instant case, the evidence fails to reveal that the infant plaintiff was injured on a public street or sidewalk. There is no dispute as to where the injury occurred. The unchallenged testimony is that Rickey Atkinson was injured when he stepped on a board which was in the fifteen foot strip between the sidewalks. He was not on Bank Street, nor was he on the sidewalk adjacent thereto when he was injured. No evidence was offered whatever to show that the strip of land between the two sidewalks was a public weay in the Town of Pine Grove. In the absence of such proof, the plaintiffs have failed to show any duty owed to them by the defendant town and such town cannot be guilty of negligence resulting in the injury to the infant plaintiff. Townley v. City of Huntington, 68 W.Va. 574, 70 S.E. 368, 34 L.R.A.,N.S., 118, relied upon by the plaintiffs, is distinguishable from the instant case. In that case a child was injured in a grassy plot between the sidewalk and the street. Holding the city...