Blankenship v. The City Of Williamson

• Decision Date: 23 March 1926
• Docket Number: (No. 5363.)
• Citation: 101 W.Va. 199
• Court: West Virginia Supreme Court
• Parties: Lydia Blankenship v. The City of Williamson

101 W.Va. 199

Lydia Blankenship

v.The City of Williamson

(No. 5363.)

Supreme Court of Appeals of West Virginia.

Submitted March 9, 1926.

Decided March 23, 1926.

1. Automobiles' Whether City's Negligence in Permitting Ob-struction of Street Was Proximate Cause of Pedestrian's Injury by Motor Truck Struck by Passing Automobile, Held for Jury (Code C. 43 § 167).

Whether the negligence of the defendant as charged in the declaration is the proximate cause of the plaintiff's injury, or whether the sole cause of the injury was the act of an independent third person, are questions of fact for jury determination. (p. 200.)

(Municipal Corporations, 28 Cyc. pp. 1509, 1510.)

2. Municipal Corporations City is Liable for Injuries Re-ceived as Combined Result of Accident and City's Negligence, Although Accident Was Primary Cause of Injury (Code C. 43 § 167).

A city is liable for injuries received by a person observing due care for his safety, as the combined result of an accident and the city's negligence, although the accident is the primary cause of the injury, where the injury would not have occurred but for such negligence, and the consequences of its negligence could, with commoni prudence and sagacity, have been foreseen and provided against by the city. (p. 202.)

Hatcher, Judge, absent.

(Municipal Corporations, 28 Cyc. p. 1409.s)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Mingo County.

Action by Lydia Blankenship against the City of Williamson. Judgment for plaintiff, and defendant brings error.

Affirmed.

Wade H. Bronson, for plaintiff in error.

Joe Hatfield and Randolph Bias, for defendant in error.

Woods, Judge:

In an action against the City of Williamson for injuries sustained by reason of its negligence in leaving a certain street out of repair, the plaintiff recovered a $1,000.00 judgment, Prom this judgment the city prosecutes this writ of error.

The paved portion of East Fourth Avenue was sixteen feet wide. At the point of the accident there was no sidewalk on either side of the street, and because of the steep eighteenfoot embankment down to the railroad tracks on the south and the hillside on the north, pedestrians were required to use the street, which was also used by vehicles. On the bank at the north curb at that point there was a pile of earth extending out onto the paved portion of East Fourth Avenue a distance of about six feet, the same being approximately ten feet in length and from two to three feet in height at the curb. Some lumber was piled in an irregular and mixed manner on top of the earth. This earth and lumber had been there for about three weeks. At the time of the accident the plaintiff and a Mrs. Hatfield were returning home from a store, which was located some two hundred feet to the west of her residence. They had just stepped out into the street and were starting around this obstruction, when plaintiff noticed two cars one a large truck approaching from the east, the one in the rear attempting to pass the one in front. Plaintiff and her companion got upon the pile of earth and lumber (the only available place of safety) to be out of the way of the cars at this narrow place in the street. The rear car as it whipped past the truck, which was just arriving at the narrow part of the street, struck the hub of the left front wheel of the truck, causing the wheels of said truck to be so cut as to run it into the pile of earth and lumber. Mrs. Hatfield by force of the collision of the truck with the lumber was thrown against the bank out of the range of the truck, while the plaintiff was knocked into the paved portion of the street and one wheel of the truck ran over her. She was dragged for two car lengths, according to her testimony. As a result plaintiff sustained serious and permanent injuries.

The defendant pleaded the general issue of not guilty, and issue was joined on this plea. The plaintiff's theory was that the alleged street was out of repair and that this was the proximate cause of her injuries. The defendant assigns three errors as grounds for reversal: (1) The plaintiff failed to prove that the place where the accident occurred was a public street of the city; (2) the alleged obstruction in the street was not the proximate cause of the injury the injury was caused solely by the act of an independent third person; and (3) the earth and lumber in the street did not render the same unsafe for reasonable use in the ordinary modes of travel.

It was shown in evidence that for ten years the street in question had been the only thoroughfare leading through East Williamson and that it had been paved and recognized by the city as such for that period of time. "Very slight corporate recognition of a way so laid out and used by the public suffices, and it may be implied as well as express." Post v. City of Clarksburg, 74 W. Va. 4.8.

The contention, as we have seen, made by defendant on this writ of error is that the negligence of the city in allowing East Fourth Avenue to be and remain obstructed and in the condition shown in the evidence was only the remote, and not the proximate, cause of the injury; that the intervening efficient cause of the injury was the collision of the truck with the lumber, with which the city had nothing to do. There are two distinct and contrary doctrines followed by cases involving injuries to travelers on highways where there are, as is the case here, concurring causes of the injury. In 22 R.C.L. 198, §81, the rule is stated: "The general rule, which is upheld by a majority of the cases, is that, when two causes combine to injure a traveler on a highway, both of which are in their nature proximate the one being a culpable defect in the highway and the other some occurrence for which neither is responsible the municipality is liable, provided that the injury would not have been sustained but for such defect. And this is the rule, although the accident was the primary cause of the injury, if the consequences could, with common prudence and sagacity, have been foreseen and provided against by the municipality." This doctrine is supported in the following cases: Janes v. Tampa, 52 Fla. 292; Joliet v. Verley, 35 Ⅲ. 58; Joliet v. Shufelclt, 144 111. 403; Knouff v. Logansport, 26 Ind. App. 202; Walrod v. Webster County, 110 la. 349; Louisville Home Telephone Co. v. Gasper, 123 Ky. 128; Louisville v. hart, 143 Ky. 171; Neidhardt v. Minneapolis, 112 Minn. 149; Morris v. Litchfield, 35 N. Ⅱ. 271; v. Cohoes, 77 N. Y. 83; Ehrgott v. New York, 96 N. Y. 264; Gonzales v. Galveston, 84 Tex. 3.

Our statute imposes an absolute liability upon cities for injuries sustained by reason of the failure of the municipal authorities to keep in repair their streets and sidewalks. Code, Ch. 43, § 167; Chapman v. Milton, 31 W. Va. 384; Biggs v. City of Huntington, 32 W. Va. 55; Yeager v. City of Bluefield, 40 W. Va. 484; Pollock v. Wheeling Traction Co., 83 W. Va. 768; Stanton v. C% o/ Parkersburg, 66 W. Va 393.

Ordinarily, the obstructions in streets, constituting a defect for an injury resulting from which the municipal corporation was liable, include any object upon or near the traveled path which would necessarily obstruct or hinder one in the use thereof for the purpose of travel, or which, from its nature and position, would be likely to produce that result. So, to hold a municipal...