Chapman v. Town of Milton

• Citation: 7 S.E. 22,31 W.Va. 384
• Parties: CHAPMAN v. TOWN OF MILTON.
• Decision Date: 27 June 1888
• Court: West Virginia Supreme Court

7 S.E. 22

31 W.Va. 384

CHAPMAN v. TOWN OF MILTON.

Supreme Court of Appeals of West Virginia.

June 27, 1888

Submitted June 14, 1888.

Syllabus by the Court.

Our statute (section 53, c. 43, Code) imposes an absolute liability upon cities, villages, and towns for injuries sustained by reason of the failure of the municipal authorities to keep in repair those streets sidewalks, etc., within the corporate limits, which its authorities have opened or controlled, and treated as public streets, sidewalks, etc., and therefore, in an action against a town by a person injured by a defective sidewalk, he is not required to allege in his declaration, or prove on the trial that the defendant had notice of the defect or want of repair in such sidewalk. ^[1]

But, in order to entitle the plaintiff to recover on such action, he must allege and prove that the street or sidewalk upon which the injury occurred was, at the time and place where the injury was sustained, controlled and treated by the town authorities as a public street or sidewalk, and opened as such. ^[1]

Error to circuit court, Cabell county.

Simms & Enslow, for plaintiff in error.

E. M McAllister and Gibson & Michie, for defendant in error.

SNYDER J.

Trespass on the case, brought by Willis Chapman against the town of Milton, in the circuit court of Cabell county, to recover damages for injuries sustained by the plaintiff by reason of the defendant's neglect to keep in repair a certain public sidewalk within its corporate limits. The defendant demurred to the declaration, and pleaded not guilty. The court overruled the demurrer; and, issue being joined on the plea, the case was tried by a jury, and verdict returned for the plaintiff for $418 damages, which verdict the defendant moved the court to set aside, but the court overruled the motion, and entered judgment for the plaintiff, and the defendant brought this writ of error.

The first error assigned is that the court improperly overruled the demurrer to the declaration. The only objection made to the declaration is that it fails to allege that the defendant had notice of the defect in the sidewalk which caused the injury. Our statute declares that "any person who sustains an injury to his person or property by reason of a public road, bridge, street, sidewalk, or alley in any corporate city, town, or village being out of repair, may recover all damages sustained by him by reason of such injury, in an action on the case, in any court of competent jurisdic tion, against the county court, city village, or town in which such road, bridge, street, sidewalk, or alley may be, except that such city, village, or town shall not be subject to such action unless it is required by its charter to keep the road, bridge, street, sidewalk, or alley therein, at the place where such injury is sustained, in repair." Section 53, c. 43, Code 1887, p. 331. This statute in express terms makes the town liable for damages for injuries sustained by reason of a defect in a public street or sidewalk. The language is unqualified, and without exception or limitation, and therefore the question of notice or want of care on the part of the town is altogether immaterial. The exercise of any degree of care in repairing the street or sidewalk is no defense to an action against the town for injuries from a defect therein if, notwithstanding such care, the street or sidewalk was in fact defective. It is only necessary, in such action, to allege and prove the existence of the defect, and that the injury was occasioned thereby. Shear. & R. Neg. § 369; Sheff v. Huntington, 16 W.Va. 307. The rule is otherwise in the case of towns or other municipal bodies upon which no such absolute liability is imposed. They are only bound to exercise ordinary care and vigilance in keeping their streets in repair, and therefore, before they can be made liable for injuries caused by a defect in a street or sidewalk not arising from its construction, or from an act authorized by the corporation, either express notice of the nuisance must be brought home to it, or the defect must be so notorious as to be observable by all, for a sufficient time to enable the corporation to repair it. Shear & R. Neg. § 407; 2 Dill. Mun. Corp. § 1024. In this class of cases it is essential that the plaintiff should both allege and prove notice to the corporation of the defect which caused the injury Noble v. City of Richmond, 31 Grat. 271. But in cases like that now under consideration, where the statute in express terms imposes an absolute liability upon the town, it is unnecessary to allege or to prove notice of the defect to the town. This statute seems to be somewhat harsh and impolitic; but it is one the legislature had the power to make, and therefore nothing is left to the courts but to enforce it. However, the construction we have given it is not likely to expose municipal corporations to any extraordinary burden, because if the defect in the highway be open and visible, and the traveler, through his own negligence or rashness, should, by attempting to pass over it, thereby suffer injury, such injury would be attributable to himself, and could not be said to arise from the want of repair in the highway. Yale v. Hampden, 18 Pick. 357; 2 Dill. Mun. Corp. § 1026. For the reasons stated I am of opinion that the court did not err in overruling the demurrer to the declaration.

The next error relied on by the plaintiff in error is that the court erroneously instructed the jury. The evidence tended to prove that, on the day he was injured, the plaintiff and one Nelson went up the railroad track to a certain point, and then left the road, and got upon the board sidewalk in the corporate limits of the defendant; that, while walking along said plank sidewalk by the side of Nelson, the latter stepped upon the end of one of the planks of...