Costello v. City of Wheeling, 11088

Decision Date09 September 1960
Docket NumberNo. 11088,11088
Citation117 S.E.2d 513,145 W.Va. 455
CourtWest Virginia Supreme Court
PartiesMadalyn J. COSTELLO, P. E. v. CITY OF WHEELING, etc. et al.

Syllabus by the Court.

1. 'A municipal corporation is not an insurer against accidents upon streets and sidewalks. Nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient if the streets are in a reasonably safe condition for travel in the ordinary modes, with ordinary care by day or night; and whether so or not is a practical question to be determined in each case by its particular circumstances.' Syl., Pt. 4, Yeager v. City of Bluefield, 40 W.Va. 484 .

2. In an action by a pedestrian for personal injuries sustained in a fall on a public sidewalk during a rainstorm, against the proprietors of a jewelry store in front of whose store the fall had occurred, where the evidence shows that: such proprietors had caused a portion of the sidewalk, and that on which the fall had occurred, to be constructed of terrazzo in violation of two city ordinances; the terrazzo was more slippery than the adjacent concrete portion of the sidewalk; and, the proprietors had been accustomed to applying sand to the terrazzo portion in rainy weather to reduce the slipperiness thereof, factual questions for jury determination are presented and it is reversible error to direct a verdict for the defendant.

3. 'Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence.' Syl. Pt. 1, Fielder, Adm'x v. Service Cab Company, 122 W.Va. 522 .

Goodwin, Spillers & Mead, Wheeling, for plaintiff in error.

Jeremy C. McCamic, George G. Bailey, Handlan, Garden, Matthews & Hess, Lester C. Hess, Schmidt, Laas & Schrader, Thomas B. Miller, Wheeling, for defendants in error.

BROWNING, President.

In this action of trespass on the case, plaintiff, Madalyn Costello, seeks to recover for personal injuries sustained when she fell on a sidewalk abutting Market Street in the City of Wheeling, West Virginia. The defendants are the City of Wheeling, The First National Bank & Trust Company, as Trustee for the beneficial owners of the McLain Building in front of which the fall occurred, and Simon Penn and Lillian Penn, doing business as Penn Jewelers, the lessee of a ground floor storeroom of the McLain Building, in front of whose shop the fall occurred. The concrete sidewalk at the point of the accident was approximately 12' in width and runs in a general north-south direction, ascending to the south, the rate of ascent not being shown by the record. In 1948, Penn Jewelers, hereinafter referred to as Penn, in the course of the construction of a new store front, had caused a portion of this sidewalk to be paved with a material commonly known as terrazzo. The terrazzo surface extends onto the sidewalk, and even with the concrete portion thereof, a distance of approximately three and one-third feet near the northern property line of the building and narrows down to a distance of one and one-half feet near the southern property line. The slope of the terrazzo and concrete from the building to the curb varies from 5/8ths inch per foot on the north to 3/4ths inch per foot on the south. The terrazzo and slope constitute violations of a city ordinance prescribing the materials and maximum degree of slope for construction of sidewalks within the City of Wheeling. Two witnesses testified as to the slipperiness of the terrazzo surface in comparison with the remainder of the sidewalk. Sidney Smith, an engineer and the person who made the above mentioned measurements, testified that he had performed tests on the terrazzo and concrete, and that the results showed the terrazzo to be more slippery, both dry and wet, than the adjoining concrete. John Pascoli, the subcontractor who had laid the terrazzo, testified that the composition used in doing the work was two parts marble chips to one part cement. The part containing the marble chips also contained 20% alundum, an abrasive resembling carborundum, the addition of which is to prevent slipping. Pascoli also testified that when finished, the terrazzo and the concrete generated almost the same amount of frictional resistance and that the terrazzo would become more resistant with age and wear; that, additional precautions, such as protecting the terrazzo with an awning or by sprinkling with sand in wet weather, would depend upon the grade of the sidewalk; and that, when terrazzo was used in the construction of steps, the alundum or abrasive content was increased to 40%. Charles Bell, Jr., testified that he was an employee of Penn; that sand was kept for use on the terrazzo in wet weather; and that he had applied sand to the terrazzo a short time previous to plaintiff's fall. He also testified that he had assisted plaintiff following her fall, that she was lying on the sidewalk near the northern property line, her feet and part of her body being partially on the terrazzo with the rest of her body on the concrete portion of the sidewalk, and that, while he had not taken particular note, it appeared at that time that most of the sand had been washed away. Plaintiff testified that she had been shopping; that it was raining very hard; and, as she was proceeding south on Market Street '* * * on the walk in front of the Penn Jewelers on the terrazzo as you call it', her feet slipped out from under her and she fell. On cross-examination, she was asked these questions and gave these answers:

'Q. * * * Now, how come you remember it was on the terrazzo part you say you fell? A. Because it was very slippery on the spot where I fell and it was close to the doorway.

'Q. It was very slippery on the part where you fell and that is the reason you say it must have been on the terrazzo, is that correct? A. Yes, sir.

'Q. You can't say as a definite matter where you did fall? A. On the terrazzo, yes, sir.' As a result of her fall, plaintiff sustained injuries which later required an operation for removal of the coccyx.

At the conclusion of the testimony in behalf of the plaintiff, the court sustained a motion in behalf of the defendants, and directed a verdict against the plaintiff, and in favor of all of the defendants. A motion to set aside such verdict was overruled and judgment was entered thereon, all of which actions are assigned as error in this Court.

Under the provisions of Code, 17-10-17, a municipal corporation has an absolute liability for an injury resulting from its streets, sidewalks and alleys being out of repair, if required by its charter to keep them in repair, even though such municipal corporation had no notice of such fact at the time of the injury resulting from such condition. Therefore, assuming such provision is in the charter of the City of Wheeling, it is only necessary for this Court to determine upon this writ whether the trial court, from the evidence adduced by the plaintiff, committed error in finding as a matter of law that the sidewalk in question was not out of repair within the meaning of the statute. There have been several such cases decided by this Court and they are collected and commented upon in the opinion of the recent case of Burcham v. City of Mullens, etc., 139 W.Va. 399, 83 S.E.2d 505. This Court has consistently held that for a public sidewalk to be out of repair within the meaning of that section, it must be in a condition which renders it dangerous to persons using it with ordinary care by day or by night. But every defect in a city street or sidewalk which causes an injury is not actionable under this statute. Waggener v. Town of Point Pleasant, 42 W.Va. 798, 26 S.E. 352; Yeager v. City of Bluefield, 40 W.Va. 484, 21 S.E. 752. As was stated in the 4th point of the Syllabus of the Yeager case, the question is a practical one to be determined in each case by its particular circumstances: 'A municipal corporation is not an insurer against accidents upon streets and sidewalks. Nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient if the streets are in a reasonably safe condition for travel in the ordinary modes, with ordinary care, by day or night; and whether so or not is a practical question to be determined in each caes by its particular circumstances.' Such a rule is of little comfort to the bench and bar, but the words used in the statute, 'out of repair', are such that no more specific principle can be laid down. Cases in which a street, sidewalk or alley has been held to be 'out of repair', and the condition thereof, are: Burcham v. City of Mullens, 139 W.Va. 399, 83 S.E.2d 505 (board sidewalk which sagged or tilted when stepped upon); Burdick v. City of Huntington, 133 W.Va. 724, 57 S.E.2d 885 (hole in sidewalk, five to eight inches long, two inches wide, and one and one-half to three inches deep); Rich v. Rosenshine, 131 W.Va. 30, 45 S.E.2d 499 (snow and ice piled in ridges and depressions on sidewalk); Taylor v. City of Huntington, 126 W.Va. 732, 30 S.E.2d 14 (driveway elevated three inches above surrounding terrain); Williams v. Main Island Creek Coal Co., 83 W.Va. 464, 98 S.E. 511 (projection of scaffold three feet into roadway). No attempt has been made to cite all of the cases dealing with this question nor to relate all of the conditions, defects or obstructions which have been held to come within, or without, the meaning of the words 'out of repair'. In the instant case, the evidence most favorable to the plaintiff shows only that the terrazzo was more slippery than the adjacent concrete. It does not necessarily result therefrom that it was dangerous to walk upon, 'with ordinary care by day or night.'...

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    ...where we have held that a violation of a statute or ordinance is prima facie evidence of negligence. See Costello v. City of Wheeling, 145 W.Va. 455, 461, 117 S.E.2d 513, 517 (1960); Barniak v. Grossman, 141 W.Va. 760, 765, 93 S.E.2d 49, 53 (1956). As for the violation of safety statutes, i......
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