Carder v. City Of Clarksburg

• Decision Date: 19 January 1926
• Docket Number: (C. C. No. 370.)
• Citation: 131 S.E. 349
• Parties: CARDER . v. CITY OF CLARKSBURG.
• Court: West Virginia Supreme Court

131 S.E. 349

CARDER .

v.CITY OF CLARKSBURG.

(C. C. No. 370.)

Supreme Court of Appeals of West Virginia.

Jan. 19, 1926.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Obstruct—Obstruction.]

Case Certified from Circuit Court, Harrison County.

Action by William A. Carder, administrator of a deceased child, against the City of Clarksburg. A demurrer to the declaration and to each count thereof was overruled, and the trial court certified its ruling, which was ordered to be docketed and the ruling reviewed, under Code, c. 135, § 1, as amended by Acts 1925, c. 28. Ruling reversed.

J. E. Law, of Clarksburg, for plaintiff.

Fred L. Shinn, of Clarksburg, for defendant.

LIVELY, J. The trial court overruled a demurrer to the declaration and to each count thereof, and certified his ruling to this court, which certification was ordered to be docketed and the ruling reviewed, under the latter part of section 1 of chapter 135 of the Code, as amended by chapter 28 of the Acts of 1925.

It appears from the declaration that the city of Clarksburg owned and operated a motor tractor used for work in the construction of its streets, and had left the tractor on Pride avenue, which, at the point of parking, was on an incline. Plaintiff's intestate, a child of four years, with other children, was playing or passing by along Pride avenue, and plaintiff's intestate climbed upon the tractor, which, the declaration charges, was unlocked, unfastened, and unguarded, and that it then suddenly, without notice or warning of departure, started to run back down the incline in said street, throwing plaintiff‘s intestate to the ground and underneath the machine, thereby killing him.

The first two counts base recovery upon the theory that the tractor so owned and op erated, and left negligently and carelessly upon the streets, where the children were likely to be, and had a right to be, was of such an attractive character as to invite and induce them in their childish curiosity to climb upon it; that it was a dangerous machine, when left unlocked and unguarded; and that the negligence of the officers of defendant in thus leaving the dangerous machine, attractive to children, in a public place in a thickly settled part of the city, without being locked and guarded, makes defendant liable for the injury.

The third count predicates liability of defendant on the theory that, by reason of the tractor being so placed unlocked and unguarded, a defect in the street was caused, and that by reason thereof the street was out of repair, and was dangerous to persons having a right to be on the street, and that the death of plaintiff's intestate was caused by reason of the defect in the street, for which liability is imposed by the statute (section 167, c. 43, Code 1923).

In this state we recognize liability and nonliability of a city for acts committed by it, according to whether the act was done in its governmental or proprietary character. If the act be done in carrying out a governmental function, the city is not liable; if done in exercising some power not strictly governmental, but of a private or proprietary nature, the city is liable. Brown's Administrator v. Guyandotte, 34 W. Va. 299, 12 S. E. 707, 11 L. R. A. 121; Douglass v. County Court, 90 W. Va. 47, 110 S. E. 439, 22 A. L. R. 585; Krutili v. Board of Education (W. Va.) 129 S. E. 486; Warden v. City of Grafton (W. Va.) 128 S. E. 375; Wigal v. City of Parkers-burg, 74 W. Va. 25, 81 S. E. 554, 52 L. R. A. (N. S.) 465. The difficulty in applying the doctrine of liability or nonliability is in determining whether the function performed was of a public or private nature. The decisions are conflicting and confusing. Illustrative of the conflict are the two cases of Dodge v. Granger, 17 R. I. 664, 24 A. 100, 15 L. R. A. 781, 33 Am. St. Rep. 901, where plaintiff was injured by a ladder extending across the sidewalk from a fire truck, which had been negligently left in front of the fire station while the station was being cleaned, in which recovery was denied, and Kies v. Erie, 169 Pa. 598, 32 A. 621, where plaintiff was injured while using the sidewalk by a door of the fire station, which was so constructed as to open out upon the sidewalk, and recovery was allowed.

The justice of awarding compensation for injuries received by a person without fault always appeals to a court, and more especially to a jury, and may have contributed to the confusion in the decisions. "Hard cases make poor law." While the theory of recovery where death ensues is the probable worth of intestate's estate, had he lived, the amountis often insensibly influenced in the verdict by sympathy for the suffering and anguish of the bereaved. We often forget that money cannot assuage the indescribable anguish for the loss of our dear ones, and that time or circumstance can never wholly heal the heart wound.

Was the negligent act of leaving the tractor unguarded and unlocked on Pride avenue, in a thickly populated part of the city, done in pursuance of a governmental function or in the discharge of a proprietary act? The correct answer to this query will control the demurrer to the first two counts. These counts charge that the tractor was owned, used, and designed to be used by the city for the purpose of hauling heavy loads and for work on roads and streets. The opening, grading, and maintaining of roads and streets of a municipality are functions and duties purely governmental. In the discharge of that governmental function the city is not liable for the negligence of its servants and agents. Brown's Adm'r v. Guyandotte, 34 W. Va. 299, 12 S. E. 707, 11 L. R. A. 121; Bartlett v. Clarksburg, 45 W. Va. 393, 31 S. E. 918, 43 L. R. A. 295, 72 Am. St. Rep. 817; Shaw v. Charleston, 57 W. Va. 433, 50 S. E. 527, 4 Ann. Cas. 515; Douglass v. County Court, 90 W. Va. 48, 110 S. E. 439, 22 A. L. R. 585; Krutill v. Board of Education (W. Va.) 129 S. E. 486.

Plaintiff contends, however, that the tractor was so constructed as to be attractive to children when in operation or parked, and that the city is responsible under the attractive nuisance doctrine, avoiding the effect of the repudiation of this court of the holding in the cases commonly known as the "turntable cases, " by arguing that the street was a public one, where children had the right to be, and plaintiff's intestate was not a trespasser. The fact that the tractor was used in a governmental work remains. The tractor had the right to be on the street, and to be parked there as other vehicles were parked. The declaration is silent as to how long it had been parked, or on what part of the street, or how wide the street was at that particular point. The negligent act charged, namely, that it was left unguarded and unlocked, does not make the city responsible, provided always a governmental duty and power was being performed and exercised. Many recent cases hold that a city is not responsible for an attractive nuisance occasioned by it while in...