Burcham v. City of Mullens
| Decision Date | 04 October 1954 |
| Docket Number | No. 10611,10611 |
| Citation | 83 S.E.2d 505,139 W.Va. 399 |
| Court | West Virginia Supreme Court |
| Parties | Mary Elizabeth BURCHAM, v. CITY OF MULLENS, etc. |
Syllabus by the Court
1. A street, sidewalk, or alley of a municipal corporation is "out of repair" within the meaning of Code, 17-10-17, when the municipal corporation permits the street, sidewalk or alley to become unsafe for ordinary and lawful use by ordinary modes and with reasonable care by day or night.
2. In an action at law instituted against a municipal corporation to recover damages for personal injuries under Code, 17-10-17, alleged to have been caused by reason of a public sidewalk of a municipal corporation being out of repair, no recovery can be had unless the plaintiff proves that the alleged defect in the sidewalk proximately resulted in the injuries complained of; and where in such an action the evidence conflicts on the question of proximate cause, such question is one of fact for jury determination.
3. In an action at law instituted by a plaintiff against a municipal corporation to recover damages for personal injuries alleged to have been incurred by reason of a latent defect in a public wooden sidewalk, the plaintiff is not barred from recovery as a matter of law on the ground of contributory negligence, where plaintiff at the time of the injuries was proceeding in a careful manner, and the defect was unknown to plaintiff and was such that it could not be observed by plaintiff by the exercise of reasonable care as she pursued her way along the sidewalk.
4. "The comparative availability, convenience, freedom from dangerous defects, and safety for travel as between two or more highways are generally questions for the jury to determine." Williams v. Main Island Creek Coal Co., 83 W.Va. 464, Pt. 4 Syl. .
5. In an action at law to recover damages for personal injuries, it is not error for a trial court to give an instruction which is amply covered by another instruction which the court gave.
6. "The exclusion of a juror for insufficient cause is not reversible error if the twelve jurors who are finally chosen to try the case are legally qualified." Pt. 2 Syl., Ritz v. Kingdon, W.Va. .
7. In an action instituted by a plaintiff against a municipal corporation to recover damages for personal injuries, alleged to have been incurred as the proximate result of a latent defect in a public wooden sidewalk of the municipal corporation, which rendered the sidewalk "out of repair" within the meaning of Code, 17-10-17, it is unnecessary for the plaintiff to show that the municipal authorities had notice of the defect.
8. "Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence." Pt. 1 Syl., Fielder, Adm'x v. Service Cab Co., 122 W.Va. 522, 523 .
D. Grove Moler, Ray Toler, Mullens, for plaintiff in error.
No appearance for defendant in error.
Mary Elizabeth Burcham instituted in the Circuit Court of Wyoming County this action of trespass on the case against The City of Mullens, a municipal corporation, to recover damages for personal injuries alleged to have been sustained by her in a fall on a board platform on a sidewalk on Oak Street, a public street in the City of Mullens, which the plaintiff alleges was 'out of repair" within the meaning of Code, 17-10-17. To a judgment in plaintiff's favor in the amount of one thousand dollars, based upon a jury verdict, the defendant municipality prosecutes this writ of error.
The pertinent provision of the statute reads: "Any person who sustains an injury to his person or property by reason of any road or bridge under the control of the county court or any street or sidewalk or alley in any incorporated city, town or village, being out of repair may recover all damages sustained by him by reason of such injury, in an action against the county court, city, town or village in which such road, bridge, street, sidewalk or alley may be, ***."
About four-thirty in the afternoon of November 21, 1950, the plaintiff, a stout, middle-aged woman, suffering from hypertension and accompanying dizzy spells, fell on a public board sidewalk, consisting of a flight of steps and platform built on a steep hillside between Poplar Street and Guyandot Avenue in the City of Mullens, in an area of the city referred to in the record as "Oak Street". At the time and place the plaintiff was injured many of the steps of the sidewalk were broken or missing, and a portion of the sidewalk was sagged and tilted, which facts were known to the plaintiff. When plaintiff entered upon the sidewalk, it had been snowing, and patches of snow, ice, slush and melted water lay on various parts of the sidewalk. Plaintiff's testimony, however, establishes that she did not fall at any of the apparent defective or dangerous places in the sidewalk, but upon a level board platform in which there were no parts broken or missing, and the evidence conflicts on the question whether there was any snow, ice, obstruction or unevenness of any kind.
In her declaration plaintiff alleges that the unexpected and sudden tilting and sagging of the sidewalk caused her fall. In her testimony she asserts that she did not stumble, slip or step on the end of a plank; that the sidewalk and steps were not protected by a handrail, and plaintiff volunteered in her testimony that if there had been a handrail along the sidewalk, she would not have fallen.
The evidence shows that when the wooden platform upon which plaintiff fell was replaced by the city some time after plaintiff was injured, the old platform was taken out as a single unit, indicating that it did not contain any loose planks or underpinning.
Plaintiff's husband, H.S. Burcham, a witness called on behalf of plaintiff, testified that the sidewalk had been on Oak Street for approximately twenty-two years; that it had been rebuilt a couple of times, in 1938, when it was entirely rebuilt, and again after plaintiff was injured in 1951. This witness testified that he had examined the platform shortly after plaintiff was injured; that he entered on the sidewalk at Poplar Street, went down a flight of two or three steps, and stepped on a platform designated in the record as "platform B", evidently the platform upon which the plaintiff fell; and that "Then the platform gave with me, the lower side of the platform", that is, the right side as the witness walked out on it. When the platform gave under witness' weight, he stepped off and observed a rock which had blood on it. This witness testified in detail that when he stepped on the platform to try it with his weight, "*** it gave considerably"; that upon minute examination witness discovered that a stringer or support for the platform on the right side thereof, that is, the side which gave under plaintiff's weight, had a soft wet place, directly under the part of the platform which gave under witness' weight; and that in an endeavor to render the platform safe, witness placed a rock underneath the platform about six feet from the end and not quite at the soft spot, wedging it between another rock and the stringer, which witness testified strengthened the platform in some degree.
The first, second, and third grounds of error, set forth in defendant's brief, which is the only brief filed on this writ of error, bear on the question of liability, and may be tersely stated as follows: (1) that the platform, where plaintiff testified she fell, was not "out of repair" within the meaning of Code, 17-10-17, and that, therefore, the trial court should have sustained defendant's motions that the trial court direct the jury to find for the defendant and set aside the verdict; (2) the clear and decided weight of the evidence shows that plaintiff's injuries were not proximately caused by any defect in the lower stringer of the board platform on which plaintiff testified she fell; and (3) plaintiff is barred of recovery in this action because the evidence shows, as a matter of law, that plaintiff was guilty of contributory negligence.
The other assignments of error, as set forth in the petition for a writ of error, stated in seriatim are: (4) The court's action in overruling and not granting defendant's several motions for a mistrial because of the manner in which certain veniremen were questioned in the presence of others, and the erroneous disqualification and dismissal of two of the veniremen; (5) the giving of plaintiff's instructions Nos. 1, 2 and 2-A; (6) the refusal of defendant's instructions Nos. 1, 2, 2-A, 6, 8, 11, 14, 6A and 16; (7) the court's disqualification and dismissal of the two jurors, F.L. Gary and Jack Goode, on the voir dire, notwithstanding they were qualified and competent jurors; (8) the court's refusal to admit in evidence the letter of H.W. Dushkoff to City Attorney Ray Toler, dated June 11, 1951, wherein plaintiff's counsel for the first time asserts a claim for damages and describes the then believed cause of plaintiff's fall; (9) permitting the introduction of a map, "Plaintiff's Exhibit A", which showed the removal of the location of the platform from its position in a former trial of this action. This defendant's counsel assert was a surprise to defendant, and it was prejudicial error to have permitted plaintiff to use the map as if "Platform B", shown thereon, was the actual location of the spot at which plaintiff claims she fell; and (10) admission of general statements as to the "general condition of the whole sidewalk" without differentiation of the platform on which plaintiff claims she fell.
The initial question raised by defendant's first ground of error is...
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