Bowen v. City Of Huntington

• Decision Date: 07 December 1891
• Citation: 14 S.E. 217,35 W.Va. 682
• Court: West Virginia Supreme Court
• Parties: Bowen. v. City of Huntington.

14 S.E. 217

35 W.Va. 682

Bowen.

v.City of Huntington.

Supreme Court of Appeals of West Virginia.

Dec. 7, 1891.

Defective Sidewalks—Negligence of Arutting Owner — Expert Testimony — Hypothetical Question.

1. Where an injury has been sustained by a person on a sidowalk in an incorporated city or town, by reason of excavations made by an abutting lot-owner in order to lay down a pavement in conformity with the grade established by said town or city under its directions, although, during the progress of said improvement, the absolute liability imposed by section 53 of chapter 43 of the Code may be suspended, yet, in order to escape liability for an injury received by a party walking along said sidewalk in the night-time, without notice of such excavation, said work of improvement must not be conducted negligently by said lot-owner while the work is progressing. Neither must said excavation, when the work is completed, be left in such a condition as to cause injury to pedestrians passing along said pavement in the night-time without notice of its condition.

2. When a medical witness is introduced and examined as an expert it is proper to propound to him an hypothetical question, reciting certain facts which" the evidence in the cause lends to prove, and such recital need not contain all of the facts which the evidence has a tendency to prove, but counsel may embody in the question such facts as tend to support his theory of the case in order to elicit the opinion of the witness based upon the testimony of other witnesses in thecause, or upon scientific principles applied to the facts so testified to.

3. Upon a trial in which such expert testimony is competent and proper, the physician or the expert may give his opinion on any hypothet ical state of facts which the evidence tends to prove, but his opinion must be based upon the state of facts as testified to by himself or other witnesses, but not upon his knowledge of other facts not testified to by himself or others. In such case, the questions put and the answers given should be so put and so given as not to elicit or express an opinion by the physician or other expert on the credit of the witnesses, or the truth of the facts testified to.

4. Where the conclusions called for by an hypothetical question from a medical man, who is being examined as an expert, depend upon facts, the evidential weight of which can only be determined by those familiar with that specialty, then those conclusions may be given by an expert in such specialty.

5. Where a party suffering with paraphlegia or paralysis of the lower half of his body institutes a suit for damages against an incorporated city or town, claiming that his condition was caused by stepping over an offset in the pavement in the night-time, occasioned by lowering the grade of the pavement at that point, which was left in that condition by the negligence of the party who laid down the pavement under the orders of said city or town, and the defendant, by way of defense, attempts to show that the condition of the plaintiff resulted from a disease of long standing, it is competent for a medical witness, in response to an hypothetical question, to state his conclusions as to the proximate cause of the paralysis.

(Syllabus by the Court.)

Error to circuit court, Cabell county.

Suit by Dyke Bo wen against the city of Huntington to recover damages for an injury by reason of a defective sidewalk. Verdict and judgment for plaintiff. Defendant brings error. Affirmed.

Campbell & Holt, for plaintiff in error.

Gibson & Michie, for defendant in error

English, J. This was an action of trespass on the case brought by Dyke Bowen against the city of Huntington, in the circuit court of Cabell county, for the recovery of damages for injuries alleged to have been sustained by the plaintiff in consequence of an excavation in one of the defendant's sidewalks, which caused a steep and perpendicular descent and fall of nearly two feet in depth in said sidewalk, within the corporate limits of the defendant. The defendant demurred to the declaration, which demurrer the court overruled, and the defendant pleaded not guilty. The issue was submitted to a jury, who returned a verdict in favor of the plaintiff for $1,750, and thereupon the plaintiff moved the court to set aside the verdict of the jury, on the ground that the same was contrary to the law and the evidence, which motion was subsequently withdrawn, and thereupon the defendant moved the court to set aside the verdict rendered therein as aforesaid, on the ground that the same was contrary to the law and the evidence, which motion was overruled by the court, and judgment was rendered upon said verdict for the sum of $1,750, and costs, and from this judgment the defendant obtained this writ of error. The facts disclosed by the evidence are in substance as follows: In the fall of 1888 L. D. Sanborn, who resided in the city of Huntington, on the corner of Third' avenue and Twelfth street, was ordered by the city authorities to pavethe sidewalk in front of his lot on Third avenue with brick or stone, the space intended for the sidewalk being 15 feet wide. About four years previously the board walk had been taken up and a brick and stone walk had been put down about 4 or 5 feet wide, level with the ground, on either side thereof, and in 1888 the city determined to ha ve the entire space of 15 feet left for a sidewalk paved with brick or stone, and in obedience to said orders the said Sanborn had to cut down about 14 inches to get to the grade established by the city. On the inside next to his lot it was 16 Inches down to the grade, the ground being a little higher at that point, while next to the gutter it was 10 inches. After making the excavation he put in 2 inches of sand, and then laid the brick on top of the sand, reducing the depth of the excavation to 12 inches next to the lot and 6 inches next to the gutter. Mr. Emmons, who owned the lot adjoining on the east, did not put his pavement down at the same time, which caused an offset next to the Emmons lot of 12 inches next to the lot and 6 inches next to the gutter. After Mr. Sanborn finished his pavement he kept a light and guard at this offset for two or three days. He then made a step out of 2-inch oak plank, 15 inches wide and 6 or 7 feet long, about equally dividing the 10 inches left from his brick pavement to the top of the flagstone in front of the Emmons lot, which step remained there for three or four days, till the flag-stone on the Emmons lot was sloped down. W. O. James came up there and said the city had ordered him to slant down the walk, and he slanted it down, and took the step away. The flag-stone was 5 or 5 1/2 feet long, and said Sanborn assisted said James in sloping down the walk. He took up two flag-stones, and dug the dirt from under them and again let the stones down. The dirt was Bush with the flag-stones. The whole width of the 15 feet was open to travel, and nothing was done to the sidewalk outside of the flagstones. The sidewalk east of Sanborn's on Third avenue was composed of flag-stones about 4 feet wide, although the whole space of 15 feet was open to travel. Supposing the pavement constructed of flag-stones to have been 5 feet in width, and placed in the center of the space allowed for the sidewalk, this would leave about 5 feet on each side of said stone pavement which remained un-paved, and foot passeugers had the right to travel over any portion of the 15 feet of space allowed for said sidewalk. According to the evidence of Sanborn, said offset was only sloped down the width of the stone pavement, and nothing was done to slope the same between the stone pavement and his lot; and William Sanborn states that the balance of the 15-foot space was left just as it was before; that there were no barriers, but that a light was kept there until the walk was sloped down by W. O. James; that there was no light there on the 18th of November, 1888, and there was an offset on each side of the flag-stone.

Looking, then, at the circumstances surrounding the accident which, the plaintiff claims, occasioned the injury complained of, we find that the night was a dark one. No barrier or beacon light had been provided by the town to warn plaintiff of the excavation, and the entire space of 15 feet was open to travel, and constantly used. The evidence does not show that the plaintiff was acquainted with the fact that the offset existed, or that the excavation had been made, but, on the contrary, he states in his testimony that ho had often been along there before. There wns no notice to him of this offset, and he did not know they were grading, and the defendant failed to bring home to him any notice ol the existence of this offset in the pavement. Under these circumstances, then, if the injuries complained of by the plaintiff resulted from thesudden wrench received in stepping over said offset in the pavement, we can see no valid excuse, in the light of the rulings of this court, in reference to injuries received on sidewalks and streets, for the negligence of the defendant in leaving the pavement at that point in the condition it was at the time of the accident. It is true that the act of the corporation in sloping the pavement the widtli of the flag-stones was a step in the proper direction, and no doubt would have answered all purposes for pedestrians passing in daylight; but pavements must be so constructed and kept as to be safe at all times, day or night. The question, however, which assumed the most prominence and evoked the most controversy upon the trial of the case was whether the par-apblegia from which the plaintiff was shown to be suffering was the result of the accident occasioned by the defect in the sidewalk, or was a consequence induced by the disease from which he was and had been suffering. In order to allow the jury to have a fair opportunity of determining properly to which of these causes his...