Burke v. Jackson County Court
| Decision Date | 19 December 1911 |
| Parties | BURKE v. JACKSON COUNTY COURT. |
| Court | West Virginia Supreme Court |
Submitted June 2, 1910.
Syllabus by the Court.
A county court is liable for injury to property of one using a highway arising from defect in it, though the defect is latent, and though the county court had no notice of defect.
A road used, controlled, and occupied as a public road by a county court is a "public road," within the meaning of Code 1906, c. 43, §§ 31 and 53.
Error to Circuit Court, Jackson County.
Action by G. O. Burke against the County Court of Jackson County. Judgment for plaintiff, and defendant brings error. Affirmed.
R. E Hughes and John M. Baker, for plaintiff in error.
W. F Boggess and N.C. Prickitt, for defendant in error.
G. O. Burke brought action against the county court of Jackson county to recover for damage to a steam wheat thresher by the breaking down of a wooden culvert or bridge on a public road, and, having recovered verdict and judgment for $125, the county court brings the case to this court.
Complaint is made for the overruling of a demurrer to the declaration. The defect alleged is that it does not sufficiently allege that the county court had opened, controlled, maintained, and treated the road as a public highway. The declaration alleges that when the accident occurred, and long before, the county court "used, worked, controlled, and occupied" said road and highway, and kept and maintained the wooden culvert over a ravine, and that it was a public road for all. This is a sufficient allegation to charge the county as for a public road. The Code, § 31, c. 43, says that every road used and occupied as a public road shall, in all courts, be deemed such whenever its establishment shall come in question. The charge is that the county used, occupied and worked the road. If so, it is a public road. Ball v. Cox, 29 W.Va. 407, 1 S.E. 673; Campbell v. Elkins, 58 W.Va. 308, 52 S.E. 220, 2 L. R. A. (N. S.) 159. Declaration good under those cases and Waggener v. Point Pleasant, 42 W.Va. 798, 26 S.E. 352.
Various exceptions are made because of exclusion of evidence. We find them not ground of error, especially as it does not appear what was to be proven. We have examined the instructions. We find no error in them. We think as a whole they laid before the jury fairly the contention of the two sides, the question of liability of the county, and that of contributory negligence. They contain no points of law not already discussed and settled. We see no utility in discussing settled law in every case in which it arises, causing delay in the administration of justice and public expense. In my own opinion, much of it could be dispensed with.
The brief of the county's counsel argues that a county court is not liable absolutely for damage coming from defect in a road; that it is not liable for latent defect, and not liable without notice of defect. We understand that under Code, § 53, c. 43, the county is absolutely liable, if there is actionable defect. No matter that the defect is latent, or whether the county court knows of the defect or not. Campbell v. Elkins, 58 W.Va. 308, 52 S.E. 220, 2 L. R. A. (N. S.) 159; Arthur v. Charleston, 51 W.Va. 132, 41 S.E. 171; Yeager v. Bluefield, 40 W.Va. 484, 21 S.E. 752.
We affirm the judgment.
I think the court should have set aside the verdict in this case. Desiring to cross the culvert with a traction engine several times heavier than the ordinary loads it was designed to carry, after having been notified that the culverts on the road were weak, the plaintiff drove the engine on it, without having taken any reasonable precaution against accident, The culvert was about 16 feet long and supported by log stringers about 8 inches in diameter. These stringers, old and decayed, were unsupported by any middle pillars of any sort. Advised of the weakness of the culverts on the road, he stopped the engine before attempting to cross this one and examined it, but made no careful or adequate examination thereof. His own testimony is that he merely looked at the stringers, found them covered with bark, and thought they were sound. He applied no test whatever. The stroke of an ax or hammer would have revealed the rottenness of the stringers, and fully disclosed the insufficiency of the culvert. Then he would have taken his engine through an adjacent field, or set some braces under the stringers before going on the culvert, and thus escaped the injury of which he complains. In view of these facts, I regard his attempt to cross the culvert as a plain and palpable assumption of risk, without legal necessity therefor.
I am also of the opinion that the court erred in giving plaintiff's instruction No. 4, telling the jury to find for the plaintiff, if the decayed condition of the stringers was the proximate cause of the injury, provided due caution and care were used in conducting the boiler and engine over the culvert. It embodies an unsound proposition which seems to have governed the trial, namely, that a traveler may unnecessarily assume a risk in the use of a defective highway, if he is careful in doing so. We have expressly condemned that theory in Shriver v. County Court, 66 W.Va. 685, 66 S.E. 1062, 26 L. R. A. (N. S.) 377. It was not enough that the plaintiff "used due care and caution in conducting his said engine and boiler over said culvert," it being insufficient to bear the burden by reason of its decayed stringers, but the court here told the jury it was. Having knowledge of such condition, or under a duty by reason of...
To continue reading
Request your trial