Corbin v. City Of Huntington

• Decision Date: 23 October 1917
• Docket Number: (No. 3301.)
• Citation: 81 W.Va. 154,94 S.E. 38
• Court: West Virginia Supreme Court
• Parties: CORBIN . v. CITY OF HUNTINGTON.

94 S.E. 38

(81 W.Va. 154)

CORBIN .

v.CITY OF HUNTINGTON.

(No. 3301.)

Supreme Court of Appeals of West Virginia.

Oct. 23, 1917.

(Syllabus by the Court.)

Poffenbarger, J., dissenting.

Error to Circuit Court, Cabell County.

Action by Lottie M. Corbin against the City of Huntington. Judgment for plaintiff, and defendant brings error. Affirmed.

F. M. Livezey, of Huntington, for plaintiff in error.

Strickling & Strickling, of Huntington, for defendant in error.

MILLER, J. When this case was here before, 74 W. Va. 479, 82 S. E. 323, and for errors not now involved, we reversed the judgment and awarded defendant a new trial.

The amended declaration filed and relied on in the second trial is(substantially the same as the original, except, that in the amended declaration there was added averments of due care by plaintiff and the inability of pedestrians going south on Ninth Street, to see the curb box, located as it was behind the water plug standing on the same alignment with reference to the curb, and obscuring it until one was almost in the act of stepping thereon; and also an averment excusing plaintiff from seeing the same and negativing want of due care on her part, in that she was then in charge of her invalid husband, who because of his physical infirmities required great care, and that at the same time she was also burdened with packages containing family supplies which she was carrying on her way home from their place of business.

On the second trial the defendant offered no evidence and at the close of the plaintiff's evidence moved the court to exclude the plaintiff's evidence and to instruct the jury to find a verdict for defendant. This motion was overruled, and the verdict of the jury was for plaintiff, and fixing her damages at three thousand dollars. A motion was also interposed by defendant to enter judgment for it non obstante veredicto, and to set the verdict aside and grant it a new trial, and the judgment complained of was subsequently pronounced, overruling said motions and that plaintiff recover of the defendant the damages found by the jury and her costs.

A number of errors are assigned in the petition, and briefs of counsel, all of which we have examined, but we will respond to those only which seem to be seriously relied on and which we find worthy of consideration.

The first of these is that neither in the declaration nor in the proof is a ease of actionable negligence presented. In the opinion on the former hearing we affirmed the general rule, supported not only by our own cases, but by a majority if not all the reported decisions, where the point has been distinctly in issue, that though curb boxes, when in proper repair and when located in the outside line or that part of the sidewalk in a city or other municipality, usually devoted to objects of like character, such as shade trees, hitching posts, stepping stones, telephone poles and the like, do not constitute nuisances, or improper uses of the streets or walks, and not per se actionable obstructions, but that they may become so by reason of their defective condition or situation therein, and that as a general rule the question presented is one of fact for the jury and not of law for the court. Besides our former decision in this case the following are cited in support of this general doctrine: Parrish v. City of Huntington, 57 W. Va. 286, 50 S. E. 416; Reynolds v. Philadelphia, 221 Pa. 51, 70 Atl. 125; Archer v. City of Mt. Vernon, 57 App. Div., 32, 67 N. Y. Supp. 1040; Redford v. Woburn, 176 Mass. 520; 57 N. E. 1008; Rock Island v. Larkin, 136 111. App. 579; Scranton v. Catterson, 94 Pa. 202; Wilkins v. Rutland, 61 Vt. 336, 17 Atl. 735; Ma-honey v. Helena (C. C.) 96 Fed. 790; Powers v. Village of Mechanicville, 163 App. Div. 138, 148 N. Y. Supp. 452; Conley v. Village of Hudson Falls, 162 App. Div. 234, 147 N. Y. Supp. 507. And the same general rule has been applied in cases involving like defects and obstructions in streets and sidewalks Jackson v. Lansing, 121 Mich. 279, 80 N. W. 8; Carson v. Dresden, 129 App. Div. 728, 113 N. Y. Supp. 959; Moroney v. New York, 49 Alisc. Rep. 307, 97 N. Y. Supp. 642, affirmed 117 App. Div. 843, 103 N. Y. Supp. 1135, and by the Court of Appeals, 190 N. Y. 560, 83 N. E. 1128; Crites v. New Richmond, 98 Wis. 55, 73 N. W. 322.

We think the declaration presents a prima facie case within the principles of these decisions; and with respect to the sufficiency of the proof to support the verdict we think the evidence is fuller and supplies weaknesses therein noted on the former hearing, and presented a state of facts justifying the court in submitting to the jury the question whether the curb box in the sidewalk, defective and located as it was behind the water plug and out of the view of pedestrians going south on Ninth Street, and in that part of the sidewalk traversed by them in crossing the street at that point, constituted such an obstruction therein as to render the sidewalk dangerous and unsafe, and not in that reasonably safe condition required by our decisions.

The evidence we think substantially supports the allegations of the declaration that the curb box was located immediately in the walk way about two feet from the curb line, behind the fire plug when going south on Ninth Street; that the cap or top of this box was broken off leaving a hole from three to four inches in diameter and some two or three feet deep with the rim of the box projecting some two to four inches, above the surface of the walk, which at that point by the action of the weather or otherwise had subsided leaving a depression therein some two feet or more wide and from one to two inches deep around the curb box, and thereby adding to the dangerous character of the walk at that point. This defect was directly in the traveled path in crossing the street, and plaintiff swears distinctly that with all due care, considering her then situation, and almost immediately in her effort to turn the corner, and while keeping a lookout for vehicles in the street, she stepped upon and the heel of her shoe went down into this hole in the curb box and she was thereby thrown down and sustained the injuries complained of.

As now presented by pleading and proof, therefore, we think the case is brought clearly within the rules and principles of Parrish v. City...