Boyland v. City of Parkersburg
| Decision Date | 10 October 1916 |
| Citation | 90 S.E. 347,78 W.Va. 749 |
| Parties | BOYLAND v. CITY OF PARKERSBURG. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Section 56a XLIX, c. 43, Code 1913 (section 1815), imposes an absolute liability on incorporated cities and towns for injuries sustained on account of their public streets and sidewalks being out of repair, or obstructed in such manner as to make it dangerous to travel thereon in the ordinary modes.
The word "repair" as used in the foregoing statute includes obstructions to the highway, as well as defects therein, without regard to the manner in which or the person by whom such obstructions were placed there.
Courts do not judicially take notice of the ordinances of municipal corporations unless directed by statute to do so, except that the courts of a municipal corporation of a city will take judicial notice of the ordinances of such city, but where an ordinance of a city is put in evidence without proof of the existence of such ordinance, or that it is an ordinance of the city, and no objections are made to its introduction at the time, proof of its existence and authenticity will be waived.
A traveler along a public highway having two reasonably convenient ways for his journey, one by continuing on the sidewalk which is known to him to be dangerous, and the other by leaving the sidewalk and traveling along the street known to him to be safe, assumes the risk if he takes the dangerous way, and he cannot recover for an injury he may thereby sustain; but, in the absence of knowledge as to the condition of the sidewalk along which he was traveling, he will not be denied compensation for this reason alone, when he pursues his way along the sidewalk, although it may be dangerous. The question of whether or not he knew it was dangerous, or by the use of proper care could have known it, is for the jury.
An instruction which tells the jury that if they believe from the evidence "that the plaintiff was injured by a fall caused by the ice accumulated upon the sidewalk by the freezing water discharged from the down spout upon the Arendt building" (a building abutting on the sidewalk) "so as to follow upon and along the sidewalk, making said sidewalk dangerous to walk upon, and the plaintiff at the time used common and ordinary care in passing over and walking on the said sidewalk at that point," the defendant "is liable for the damages resulting to the plaintiff from said injury," when read in connection with another instruction, which tells the jury that "before they can render a verdict for the plaintiff, the plaintiff must prove her case, as alleged in the declaration by a preponderance of the evidence, and that should they find the evidence evenly balanced, the verdict must be for the defendant," is not erroneous.
An instruction, properly defining the duties of the defendant in constructing and keeping in repair its sidewalks, and the circumstances to be considered in determining whether the sidewalk was in repair and what constituted repair, was proper in the case at bar.
Instructions in the case at bar, which tell the jury that if they believe from the evidence that the snow and ice upon which plaintiff fell, "was not formed in humps, ridges, or hills," "but was only dangerous because of the slipperiness of the ice and the covering of the snow," such condition although dangerous, was not such a defect as will render the city liable for damages, and that it sufficiently exempts the city from liability that such ice was comparatively smooth and practically uniform in thickness upon the sidewalk, are erroneous and properly refused.
An instruction in the case at bar, which properly defines what is meant by "ordinary care," is proper, and should be given when asked for.
The following instruction asked for by defendant was properly refused: "The jury is instructed that if they believe from the evidence that the plaintiff was injured as alleged in the declaration, by an obstruction of snow and ice on the sidewalk, the question whether the defendant was negligent in allowing such obstruction to be and remain depends upon all the circumstances, and that if the jury believe from all the evidence that owing to the condition of the weather, repeated thawing and freezing, said ice was frozen tight to the pavement, and that a like condition existed all over the sidewalks of the city, and that by reason thereof it was impracticable for the city to have removed such ice, then the jury must find that the city was not negligent in failing to remove said ice, but had the right to await a general thaw before removing the same, and if the jury find from the evidence that no such thaw had occurred after forming of the ice and before the accident, they shall find for the defendant."
Error to Circuit Court, Wood County.
Action by Lottie Boyland against the City of Parkersburg. From a judgment for plaintiff, defendant brings error. Reversed, and new trial awarded.
Smith D. Turner and Wm. J. Brannan, both of Parkersburg, for plaintiff in error.
Merrick & Smith, of Parkersburg, for defendant in error.
This is an action of trespass on the case, brought by Lottie Boyland against the city of Parkersburg. The case was tried before a jury, judgment for $1,000, and brought to this court by the defendant on writ of error.
The declaration alleges that the defendant city had permitted two property owners, Christian Arendt and Birdie K. McCosh, to collect water falling on their respective houses into down spouts and discharge the same upon the public sidewalk of the city in front of the vacant lot between the said two houses, and that said water had, on December 18, 1914, frozen and accumulated into ice in considerable quantities on the sidewalk, in irregular and dangerous form, and that by reason thereof said sidewalk was in an unsafe and dangerous condition, and that the plaintiff, while necessarily passing over said sidewalk, after dark, on December 18, 1914, after a light coating of snow had fallen on said sidewalk, slipped on the ice, and fell and broke her leg. It is further alleged that the ice was a dangerous obstruction and rendered the sidewalk out of repair; that it was the duty of the city to keep the sidewalk in repair; that it was a breach of that duty to permit the accumulation of ice; and that the alleged injury resulted therefrom, etc. The declaration also alleges that ice upon the sidewalk was formed from water from the McCosh building, coming from a drain under the sidewalk up through a broken place therein, and from water discharged from the down spout on the Arendt building upon the sidewalk.
On the trial before the jury, it appeared that the accident occurred on the sidewalk in front of a vacant lot between the McCosh and the Arendt buildings; that the sidewalk sloped from the property line to the curb only enough to drain well, and lengthwise with the natural grade of the street, which sloped toward the McCosh building; that prior to December 13th, the street and sidewalk were clear of snow and ice, no rain or snow having fallen since the first of the month sufficient to form ice; that on December 13th 3 6/10 inches of snow fell, and from then until the 18th of December, the highest temperature was 33 degrees Fahrenheit, and the lowest was five degrees below zero; that the depth of the snow generally had decreased from 3 6/10 inches on the 13th to 1 4/10 inches on the 18th, by the slight thawing permitted by the state of the weather; that the owner of the lot between the Arendt and McCosh buildings was a nonresident of the city of Parkersburg, and that the sidewalk in front of the vacant lot had not been cleaned of this snow; that the sidewalk in front of the McCosh building and the Arendt building had been cleaned of the snow; that the sidewalks of the city generally, where the snow had not been cleaned off, were slippery; that the ice covered the whole or about all of the sidewalk from the Arendt building to the McCosh building, but as to the quantity of ice there is some conflict in the testimony; and that it was smooth and slippery.
It further appears from the evidence that the plaintiff had lived about four years about three squares from the place of the accident; that she knew the sidewalk in question; knew that the sidewalks of the city at the time were slippery where the snow had not been cleaned off; that she was coming west along Seventh street, and passed under the awning in front of the McCosh building, and took two or three steps upon the ice in front of the vacant lot, when she fell.
There were waterspouts leading from the roofs of the McCosh and Arendt buildings to the sidewalk. The spouts ran to within a few inches of the sidewalk, and the water was dispersed over the sidewalk. The down spout on the McCosh building had rotted off several feet above the sidewalk, and the water emptied on and spread over the sidewalk. The water from the Arendt building flowed toward the McCosh building along the sidewalk, and toward the street. There is some evidence tending to show that this ice was formed from water which came from the down spout of the Arendt building, spreading over the sidewalk along the vacant lot, mingling with the water from the melting snow. The distance between the two buildings is about 25 feet. The accident occurred about 6 or 7 o'clock in the evening. The street was lighted to some extent.
Counsel for the defendant insists that under these facts the city is not liable in damages. The theory upon which the plaintiff bases her right to recover is that it was the duty of the defendant, under the laws of this state, to keep its streets and sidewalks in repair and free from obstructions, and that the defendant wholly failed to...
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