Campbell v. City Of Elicins

• Decision Date: 14 November 1905
• Citation: 52 S.E. 220,58 W.Va. 308
• Court: West Virginia Supreme Court
• Parties: CAMPBELL. v. CITY OF ELICINS.

52 S.E. 220

58 W.Va. 308

CAMPBELL.

v.CITY OF ELICINS.

Supreme Court of Appeals of West Virginia.

Nov. 14, 1905.

1. Municipal Corporations—Streets—Public Character—Recognition.

To establish prima facie the public character of a road, street, or alley, it is only necessary to prove its use as such by the public and recognition of it as such by the county court, or the city or town, as the case may be; and such act or recognition may be shown either by the records of the county court or municipal corporation, or by proof of work done upon the same by one who is shown to be the officer whose duty it is to take care of, work, and repair the road in the precinct in which it is or the street or alley of the town or city.

[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1422, 1428.]

2. Same—Evidence.

In establishing such recognition by proof of work done upon the road or street by such officer, the amount and character of the work is immaterial, if it be such as to show clearly that it was work upon the road or street for the public benefit.

3. Same—Latent Defects—Liabilities.

Liability of a municipal corporation for injury occasioned by a latent defect in a street or road, such a defect as the injured party could not have observed or discovered by the exercise of reasonable care and prudence, is absolute, and does not depend upon lack of diligence or care on the part of the corporation.

[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1612, 1616.]

4. Same—Defective Sidewalk.

A board in a wooden sidewalk, laid on stringers resting upon smooth ground, not dangerous in character, so unsound as to give way under the weight of a pedestrian and injure him, is an actionable defect under the law of this state.

[Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1624.]

5. Interest—Judgment Ex Delicto.

A judgment rendered upon a verdict in an action ex delicto should bear interest from the date of the verdict, if there be one, and not from the date of the judgment.

(Syllabus by the Court.)

Error from Circuit Court, Randolph County.

Action by L. H. Campbell against the city of Elkins. Judgment for plaintiff, and defendant brings error. Affirmed.

W. B. Maxwell and E. D. Talbott, for plaintiff in error.

Wamsley & Coberley, for defendant in error.

POFFENBARGER, J. The city of Elkins complains on a writ of error of a judgment of the circuit court of Randolph county against it in favor of L. H. Campbell for damages resulting to him from a defective sidewalk, whereby his ankle was dislocated and his leg broken. The errors assigned are predicated on the action of the court in overruling the demurrer to the plaintiff's evidence, refusing to set aside the verdict of the jury on the ground of expressiveness, and rendering judgment for the amount of the damages assessed by the jury, with interest thereon from the date of the verdict.

Very slight evidence of recognition by the city of the street on which the injury occurred is found in the record. No ordinance or order of the council recognizing it as a public street appears, but J. G. L. Shaffer, superintendent of streets at the time, testified that he thought that particular street was under the control of the city in October and November, 1900, and in that connection said: "We repaired the walks." He also testified that this work was done under the direction of the city authorities. James A. Bent testified that the street in question had been there "since the town was built, " but he proves no acts of recognition by the city authorities. That the people used the street is disclosed by considerable evidence in the case, but the only testimony to an act of recognition is that of Shaffer, and he does not say by whom or in what manner he was directed to make repairs upon the walks. In response to the question whether it was done under the direction of the city authorities, he replies. "Yes, sir, " but this is very indefinite. Whether he was so directed by the mayor, a member of the council, the street commissioner, or some other officer, or whether the direction was given in pursuance of an order of the council, is in no way indicated. It is well settled by the decisions of this court, however, that proof of the mere working of a road by a road surveyor and its use by the public are sufficient to establish the character of the road as a public road in any proceeding. Boyd v. Woolwine, 40 W. Va. 282, 21 S. E. 1020; Ball v. Cox, 29 W. Va. 407, 1 S. E. 673; Yates v. Grafton, 33 W. Va. 507, 11 S. E. 8; Kelly's Case, 8 Grat. 632; Parrish v. Huntington (W. Va.) 50 S. E. 416. The same rule is declared in Yates v. Grafton to be applicable to the streets and alleys of cities and towns, and this view finds support in the fact that the statute upon which the doctrine rests is applicable to both classes of highways. It says: "And every road, street or alley usedand occupied as a public road, street or alley, shall in all courts and places, be taken and deemed to be a public road, street or alley (as the case may be,) whenever the establishment thereof as such may come in question." Code 1899, c. 43, § 31. If used by the public and recognized in any manner by the public authorities in charge of the county roads or streets and alleys, as the case may be, the road, street, or alley in question is a public highway. Proof of these facts make it such prima facie. If the work done is of such character and is done by such person and under such circumstances as to show an express and unequivocal act of recognition, the amount of importance of the work is immaterial. It may be much or little; but it must be done in such manner and by such person as to show intent to treat it as a public highway. The sidewalk is part of the street, and work on it is work on the street necessarily. As he was the officer of the city charged with such work, corresponding to the road surveyor in the case of county roads, it is not enough, under our decisions, that it appear that work was done upon the street by him? It would seem that it is not necessary to prove that he had particular direction from the council to do the work. Yates v. Grafton says: "Acceptance of the county or city or incorporated town need not be proved by matter of record, but may be presumed from acts of recognition, acceptance and claim." Point 4, syllabus, Talbott v. King, 32 W. Va. 6, 9 S. E. 48, says: "The user must be accompanied either by an order of the county court recognizing it in some way as a road, or the road must be worked by a surveyor as such." And in the opinion in that ease the evidence is reviewed and analyzed thoroughly to ascertain whether the fact of work by a surveyor is established by it. The inquiry does not go to the extent of the directions under which he worked or his authority as an overseer. These inquiries seem to have been regarded as unnecessary in view of the presumption in favor of the regularity of the acts of public officers. Though very slight, the evidence must be held, under the decisions above referred to, sufficient to warrant a finding by the jury that the street in question was a public one, and, therefore, good on demurrer.

The plaintiff testified that, as he was walking at a rapid gait, near the middle of the board walk, about 9 o'clock in the evening, his foot slipped on a certain plank and broke it down, so that his right heel went into a hole, made by the breaking of the board, and threw him forward with his weight on that foot, and thus dislocated his ankle and broke a bone in the leg. He produced, on the trial, a part of the board which he says so broke with him, and showed that it was decayed to some extent. As to the character of the defect, his testimony is rather indefinite. It did not let his foot go clear through, but he says his foot went into it and his heel caught in the next plank and kept him from falling, which statement seems to import that the defect was such as to permit his heel to become fastened in it, so that his weight, thrown upon the foot, either forward or to one side, dislocated the ankle and broke a bone. He says he saw the hole that night, November 25, 1900, and went back in April or May following, and found the hole still there, and that a board had broken in the middle, and the end of the part toward the street was down in the middle of the walk, while the other half rested on the stringer nearest the property line and the middle stringer. The piece produced at the trial was the one the end of which had gone down under his weight Another witness swears he went the next morning and examined the sidewalk, to ascertain, if possible, the place and manner of the injury, and found a hole in the sidewalk, and, from the tracks left in the frost by the plaintiff in crawling away seeking assistance, he was able to locate that as the place at which the injury occurred. But he does not describe the hole in the sidewalk. For aught that he says, it may have been a mere depression caused by a broken board which had settled slightly. The physician who was called to attend him was mayor of the city at the time, and on cross-examination he gave contradictory statements of the plaintiff as to the place at which and the manner in which the injury was sustained, saying the injured man had told him he had fallen at an offset in the walk. The street commissioner, called as a witness for the defendant, says that, having heard of the accident, he went the next day and examined the sidewalk, and found that, owing to the rotting away of the middle stringer, a board had broken in the middle and swagged, so as to make a...