Biggs v. Huntington.

• Decision Date: 05 February 1889
• Citation: 32 W.Va. 55
• Court: West Virginia Supreme Court
• Parties: Biggs v. Huntington.

32 W.Va. 55

Biggs

v.Huntington.

Supreme Court of Appeals of West Virginia.

Submitted January 11, 1889.

Decided February 5, 1889

1. Municipal Corporations-Streets, Sidewalks, &c.

Our statute (Code 1887, c. 43, s. 53) imposes an absolute liability upon cities, villages and towns for injuries sustained by reason of the failure of municipal authorities to keep in repair the streets, sidewalks etc. within the corporate limits, provided its authorities have opened or controlled such street or sidewalk, where the injury was sustained, as a public street or sidewalk, (p. 61.)

2. Municipal Corporations Streets, Sidewalks, &c.

In an action against such city or town the plaintiff must therefore allege and prove, that the street or sidewalk, upon which the injury occurred, at the time and place, when the injury was sustained, was controlled and treated by the municipal authorities as a public street or sidewalk and opened as such. (p. 61.)

3. Municipal Corporations Streets, Sidewalks, &c.

This duty of a city or town in this State, to keep its streets, sidewalks, alleys etc. safe for foot-passengers and vehicles, is not met by keeping simply the bed of the highway or the surface of the sidewalk in proper condition; but such duty is violated, if a dangerous excavation or open well be permitted so close to the margin of the sidewalk or highway as to make the use of them as such dangerous. But if a traveller unnecessarily for his own convenience deviates designedly from the highway and in so doing meets with an accident off from the highway, the city cannot be responsible, no matter how near the highway the obstruction may be.

Statement of the case by Green, Judge;

This was a suit brought by William Biggs, Sr., against the city of Huntington before a justice of Cabell county in which the plaintiff" claimed damages to the amount In his complaint the plaintiff claimed damages to the amount of $200.00 for this: that the plaintiff's horse was killed on the 25th of September by falling into a hole or well on and adjacent to the public and common highway known as " Third Avenue " in the corporate limits of the city of Huntington. To this complaint the defendant, the city of Huntington, pleaded not guilty; aud thereupon a jury of six were duly sworn to try this issue, who having heard the evidence and arguments of counsel retired to their room to consider their verdict and returned into court with the following verdict: "We, the jury, find for the plaintiff and assess his damages at $107.50." And the defendant by its attorney moved the court to set aside the verdict and grant it a new trial, because the verdict was contrary to the law and the evidence, which motion was overruled by the justice, who signed the following bill of exceptions:

" Be it remembered, on the trial of this cause, after the jury was sworn to try the issue joined on the plea of not guilty, the plaintiff to maintain the issue on his part introduced a witness, A. J. Beardsley, who swore, that he was a resident of the said city, had been living there seven years, and was a practicing physician; and that on the night of the 25th of September, 1886, he was called to see a woman in what is called ' West Huntington, 'in corporate limits of said city; and that the party, who came for him, said she was a city-patient, and that he was city physician, and that he got in his buggy at about 10 o'clock p. m., and drove down Third avenue opposite where the woman was sick, and some one standing in the front door of the house called to him and said that was the place; to come in. He then turned short off Third avenue, and drove across the sidewalk for the purpose of hitching horse and buggy to the fence on a lot by the side of the house that he saw, which was outside the line of the street; and that the lot was adjacent to the north side of the street, and the house on the lot was thirty feet from north line of street; and that he knew he was driving out towards the fence, that he was leaving Third avenue; and that as he drove out of said avenue, his horse gave down in his shoulders but recovered, and then his hind feet went down in what he learned afterwards to be a well. Witness jumped out, and the young man who was in the buggy with him also, and they went to work to detach horse from buggy, and as soon as he did so the horse fell down into the well, and was killed. The horse was worth $200.00 and belonged to William Biggs, Sr.; that the well was open as far as he could see, and was about from eight to twelve inches north of the line of the sidewalk and street, and that he did not know of the well until he drove into it; that there was no obstruction upon the street or sidewalk near the well to prevent him from driving up or down or across said avenue and sidewalk; that at the point where he was leaving Third avenue he knew there was no street or road, but he knew persons sometimes drove that way; that he had often passed along the street and sidewalk opposite to the well before accident, but that he never saw well at any rime; that none of the city officials told him to go to see the woman, but that he often went to see patients as city-subjects without being directed by any of the city officials; that he did not know the name of the woman he was to see, but thought her name was Tomlin; that there was no fence between line of street and well; that there was no barrier, guard or light at well, and, as far as he saw, there was no covering over well at the time; and that the well was on a level with the ground around it.

"The plaintiff introduced one Lucien MeGinnis, who swore, that at the time of the accident to the horse in question he lived in West Huntington, and that he saw the well before the accident some time but could not remember the date. The first time he saw it, it was open, and the next time it was covered; that the well was about twelve to eighteen inches out of the line of the sidewalk and street, and that the sidewalk on Third avenue was fifteen feet wide, but there was nothing but a dirt sidewalk; that gutter or drain between sidewalk and part of street traveled by horses or vehicles was about three feet wide and four to six inches deep.

"George Adams, introduced by plaintiff, swore, that before the accident to horse he had often seen the well; that he had spoken to Mr. Taylor, who was agent of the owner of the property, to have it covered; that the well was outside of the line of the street and was ten to twelve irches outside of the line marked off for a sidewalk, but there was no pavement, plank, stone or brick or curbing to indicate sidewalk, and that vehicles sometimes drove out on either side of well into the lot; and that the well was about thirty or forty feet from the middle of the street usually traveled by horses and vehicles; and that all the ground including the street and the space around the well was level except the depression, which caused the dirt gutter; that he was away at the time of the accident; that the gutter or drain between sidewalk and street for vehicles was about three feet wide and four to six inches deep; that on the south side and opposite to well, where accident occurred, the sidewalk was plank and used by pedestrians.

"Henry Putoff, on the part of the plaintiff, swore, that he lived near place, where horse was killed, and that he was there the night the horse fell into well; and before that time the well was sometimes covered and sometimes not; and that he had notified T. W. Taylor, agent for the property, that the well should be covered or filled up; that the well was about middle way in the opening; that Beardsley told him that he started to drive out into the lot, when the horse went into the well; that there was a tree standing about twenty feet from where Beardsley crossed the sidewalk, where he could have hitched; that the city-lamp was burning about sixty feet away from the well; that he had notified T. W. Taylor, agent for the property, that the well should be covered or filled up, before the accident occurred; that the morning after the accident T. W. Taylor had the well filled up.

"Florence Webb, for plaintiff, swore, that, at the time the horse fell into the well, she was well acquainted with the locality living close by, and that the well was often uncovered, and that she had frequently kept some small children from falling into it; that a day or two before horse went into well she saw it, and that it was entirely uncovered; that she had never noticed any light or barrier there to keep persons from falling into it, and that she had frequently seen huckster wagons drive on to the sidewalk near the well. And the above was all the evidence introduced on the part of the plaintiff, and he here rested.

"The defendant then by its attorneys moved the court to strike out all of the evidence from before the jury, because the same was insufficient to sustain any verdict for the plaintiff. The court overruled the motion of the defendant and refused to strike out the evidence; to which ruling of the court refusing to strike out the evidence the defendant excepted and prayed that its exceptions he saved it, which was done. The defendant then introduced some witnesses on its behalf, whose evidence did not materially change the evidence of the plaintiff, and it is so agreed by the parties, that said evidence need not be inserted. The jury retired to their room to consider of their verdict, and afterwards returned into court with the following verdict: 'We, the jury, find for the plaintiff, and assess his damages at $107.50.' The attorneys for the defendant moved the court to set aside verdict and grant it a new trial, because the same was contrary to the law and the evidence. Thereupon the court overruled the defendant's motion and refused to set aside the verdict and grant it a new trial as prayed for; to which ruling of the court in refusing to set aside the said verdict and grant a new trial the defendant by its attorneys...