Curry v. Town oe Manning-ton.

• Decision Date: 01 December 1883
• Citation: 23 W.Va. 14
• Parties: Curry v. Town oe Manning-ton.
• Court: West Virginia Supreme Court

23 W.Va. 14

Curry

v.Town oe Manning-ton.

Supreme Court of Appeals of West Virginia.

Submitted June 11, 1883

Decided Dec. 1, 1883.

1. An incorporated town or city, which by its charter or the general law is given control over the streets and walks within its corporate limits and is empowered to provide the means to make and keep them in repair, not only assumes the duty of keeping them in good condition, but by implication agrees to do so for the benefit and protection of the public; and for any failure or neglect to do so the corporation is responsible for damages to any person injured, (p. 15.)

The streets and walks in such town are designed for the use of the public, and the use of them by an individual simply for his own convenience and accommodation unaccompanied by any public use, as for drains, private crossings, sewers, vaults, (-ess-pools or other obstructions, is unauthorized and essentially a nuisance for which such individual is liable for damages to any one injured thereby. And, because it is the duty of the town to keep its streets and walks free from such private nuisances, it is also liable for damages to any one injured by its neglect to abate such nuisance or remove such private obstruction, (p. 16.)

3. One year is the bar prescribed by the statute of limitations for the recovery of damages for an injury to the person in all cases except actions under sections 5 and 6 of chapter 103 of the Code. IP-18.)

4. A case in which a judgment and verdict were awarded and set aside because the case was tried without replication or issue joined on the plea of the statute of limitations.

The facts of the case are stated in the opinion of the Court.

James Morrow, Jr., for plaintiff in error.

E. C. Snodgrass $ Son for defendant in error.

Snyder, Judge:

Action on the case, commenced April 5, 1878, by the plaintiff against the Town of Mannington, to recover damages sustained by plaintiff by reason of the neglect of the defendant to keep a certain specified public sidewalk and the incline and approach thereto, within its corporate limits and under its control, in proper and safe repair and condition. The defendant demurred to the plaintiff's declaration which demurrer the court overruled. The defendant then entered the plea of not guilty and also filed a plea in writing in which it alleged that the plaintiff's cause of action did not accrue at any time within one year prior to the commencement of this action. This latter plea concludes with a verification and there was no replication to or issue joined on either of said pleas. A jury was sworn to"try the issue joined," a trial was had and a verdict found in favor of the plaintiff for seven hundred and fifty dollars. The defendant moved the court to set aside the verdict which motion the court overruled and, on April 22, 1881, entered judgment for the plaintiff upon said verdict. The defendant thereupon excepted to the judgment of the court and asked that the facts proven on the trial be certified by the court which was accordingly done, and the defendant lias brought the case to this Court for review.

The first error assigned by the plaintiff in error is, that its demurrer to the declaration was improperly overruled, be cause the declaration "does not distinctly show that structure which caused the injury was one which tl was legally bound to keep in repair, or that the legally bound to provide and keep in safe condition any approach or incline at the place mentioned in the declaration, or that it had undertaken to construct any such incline or approach at that place, or keep any such in repair." This assignment impliedly admits, and this Court has heretofore decided, that an incorporated town or city, which, by its charter or the general law, is given control over the streets and walks within its corporate limits and is empowered to provide the means to make and keep them in repair, not only assumes the duty of keeping its streets and sidewalks in repair but by implication agrees to do so for the benefit and protection of all who may have occasion to use them; and for a neglect or failure to discharge this duty the corporation is responsible in damages to any person injured Wilson v. City of Wheeling, 19 W. Va. 828; Cooley on Torts 625; 2 Dill. Mum Corp. § 789.

The defendant here is a municipal corporation authorized and empowered by its charter to control and provide the means of constructing and keeping in repair its streets and walks. It, therefore, comes under the class of corporations above, defined and is liable for damages for neglect of its duty. Chapter 36, Acts 1871, p. 43.

The declaration, after setting out that the defendant is an incorporated town, statesthat it "as such town was possessed of and had control of a certain public sidewalk and the incline and approach thereto on a certain public street called ──street in the said town, and it then and there being the duty of the defendant to repair and keep in good and safe repair the sidewalks, inclines and approaches thereto in said town; yet the defendant not regarding its duty in that behalf, while it was so possessed and had the control of the said sidewalk, incline and approach thereto, there wrongfully and negligently suffered the same to be and remain in bad and unsafe condition and repair, and divers of the planks, wherewith the said sidewalk, incline and approach thereto was laid, to be and remain broken and unfastened, of all of which the defendants had notice; by means whereof the plaintiff, was then and there passing along and upon the said sideincline and approach thereto, then and there, nocessaunavoidablv, tripped and stumbled upon and against one of said broken and unfastened planks of the said sidewalk, incline and approach thereto, and was thereby thrown and fell," &c, and was thereby injured, setting out the nature and extent of the injur)', &c.

I think this declaration sufficiently avers that the sidewalk, incline and approach thereto, which it alleges caused the injury, were structures under the control of the town and that it was its duty to keep them in repair. If said incline and approach had been placed on the street or sidewalk by a private person, as suggested, the defendant would nevertheless have been liable for any injury caused thereby. Streets and sidewalks are designed for the use of the public and the use of them by an individual simply for his own convenience and accommodation unaccompanied by any public use, as for drains, private crossings, sewers, vaults, cess-pools...