Chambers v. Whelen, 2988
| Decision Date | 24 October 1930 |
| Docket Number | 2989.,No. 2988,2988 |
| Parties | CHAMBERS v. WHELEN et al. RICHARDS v. SAME. |
| Court | U.S. Court of Appeals — Fourth Circuit |
H. F. Porterfield, of Bluefield, W. Va. (W. V. Ross and Russell S. Ritz, both of Bluefield, W. Va., on the brief), for appellants.
George W. Howard, of Welch, W. Va., and George E. Price, of Charleston, W. Va., for appellees.
Before PARKER, Circuit Judge, and GRONER and SOPER, District Judges.
These two cases involve the same point and the appeals were heard together. The record in No. 2988 only was printed, and it was agreed that the decision in that case should control the disposition of No. 2989. In this opinion, therefore, reference is made to the record in No. 2988.
The appeal in No. 2988 was taken in an action at law instituted in the court below by a person who was injured, while traveling along a public highway, by the falling of a dead tree which had been standing upon the land of defendants. The trial court sustained a demurrer to the declaration and entered judgment dismissing the action; and plaintiff appealed.
The declaration states that the tree was situate on a large tract of land owned by defendants in McDowell and Wyoming counties, W. Va.; that it stood about two miles from the town of Welch within twenty feet of a public highway; that it was approximately seven feet in circumference at the base and approximately forty feet in height; that it had been dead for ten years or more; that it was rotten and decayed to the extent that a large portion had sloughed off, leaving it hollow with a large opening in the trunk; and that defendant knew, or in the exercise of reasonable care could have known, of its condition. It alleges that, while plaintiff was traveling along the highway in an automobile, the tree fell and inflicted serious injuries upon him. The demurrer challenged the sufficiency of the declaration, in that it did not set forth facts showing the breach of any legal duty owing by defendants.
When the declaration is considered in the light of the rule that its language is to be construed most strongly against the pleader, the allegation that the defendants knew, or in the exercise of reasonable care could have known, of the condition of the tree, is no more than an allegation of failure to inspect. It is good not as an allegation of knowledge, but merely as one that the dangerous condition of the tree was discoverable by the exercise of due care, i. e., by reasonable inspection. Ruocco v. United Advertising Corporation, 98 Conn. 241, 119 A. 48, 30 A. L. R. 1237; Laudeman v. Russell, 46 Ind. App. 32, 91 N. E. 822. The tree stood on a country road two miles distant from a small town, and there is no allegation that there was any dwelling in the vicinity. Hence the question presented is whether the owner of land in a rural section is charged with the duty of keeping himself informed as to the condition of trees growing on his property alongside the public road, so that failure to perform this duty constitutes actionable negligence.
It will be noted that the question is not as to the liability of a city or suburban dweller who plants or maintains trees within or overhanging a highway. Nor is it as to the liability of one who, with knowledge of the dangerous condition of a tree, maintains it on his property when it is liable to fall and injure the property of adjoining owners or persons passing in a public street or highway. Nor does it involve the duty or liability of one who erects an artificial structure near a highway. In all of these cases the greater probability of injury to the person or property of others imposes a higher degree of care upon the owner of the tree or structure. The question here is the narrow one as to whether it is the duty of the owner to inspect trees growing naturally upon rural lands, for the purpose of determining whether, through natural processes of decay, they have become dangerous by reason of their proximity to a highway. The question while narrow is important; for, if the duty be held to exist, it will impose a new and unusual burden upon the owners of forest lands which, so far as we are advised, with the possible exception of the case from Hawaii to which we shall refer, and a case from Quebec, has never before been urged or recognized. Furthermore, if the duty be held to exist with regard to trees, it must exist also with regard to other natural objects which may endanger travelers along...
To continue reading
Request your trial
-
Epps v. US
...fact does not, however, necessarily absolve defendant from any duty with respect to the safety of the sidewalk. See Chambers v. Whelen, 44 F.2d 340, 341 (4th Cir.1930) ("the fact that a duty is imposed upon public officials to maintain the safety of a street or highway does not necessarily ......
-
Hensley v. Montgomery County
...defective. See, e. g., Lemon v. Edwards, 344 S.W.2d 822 (Ky.); Zacharias v. Nesbitt, 150 Minn. 369, 185 N.W. 295; Chambers v. Whelen, 44 F.2d 340 (4 Cir.), 72 A.L.R. 611; O'Brien v. United States, 275 F.2d 696 (9 Cir.); Harry v. Norwalk Lodge No. 730, B.P.O.E., 92 Ohio App. 14, 109 N.E.2d 4......
-
Cline v. Dunlora S., LLC.
...would prove too onerous for the owners of large, unimproved tracts of rural land abutting public highways. See, e.g., Chambers v. Whelen, 44 F.2d 340, 341 (4th Cir.1930) (applying West Virginia law); Lemon v. Edwards, 344 S.W.2d 822, 823 (Ky. 1961); Zacharias v. Nesbitt, 150 Minn. 369, 185 ......
-
Albin v. National Bank of Commerce of Seattle
...practicable nor desirable. The financial burden would be unreasonable, in comparison with the risk involved. Chambers v. Whelan (4 Cir., 1930), 44 F.2d 340, 72 A.L.R. 611; Zacharias v. Nesbitt (1921), 150 Minn. 369, 185 N.W. 295, 19 A.L.R. The trial court did not err in dismissing Columbia ......