Daniels v. Cranberry Fuel Co.
| Decision Date | 09 February 1932 |
| Docket Number | (No. 7037) |
| Citation | 111 W.Va. 484 |
| Parties | Winiferd Daniels v. Cranberry Fuel Company |
| Court | West Virginia Supreme Court |
1. Automobile
Where proper public authority has constructed a road through a trestle supporting a coal tipple with consent of the owner and designated where, on each side of the road, he shall set his supporting pillars, giving a road space of eighteen feet for easy, safe and convenient passage, and has approved and paid for said pillars so located, and they have remained there in proper repair for over ten years without objection or complaint from any one, the owner will not be deemed to be maintaining a public nuisance per se within the meaning of chapter 17, article 16, section 1, Code 1931.
2. Appeal and Error
Where the trial judge sets aside a verdict as contrary to the law and evidence and there are uncontroverted physical facts proven which support the court's order, his action is entitled to peculiar respect and will not be reversed, unless plainly wrong, even though there is conflicting verbal testimony.
Error to Circuit Court, Raleigh County.
Action by Winifred Daniels against the Cranberry Fuel Company. To review a judgment setting aside a verdict of the jury in the plaintiff's favor, plaintiff brings error.
Affirmed.
J. W. Maxwell and C. B. Harless, for plaintiff in error.
J. H. McGinnis, and Dillon, Mohan & Holt, for defendant in error.
Plaintiff prosecutes error to the judgment of the court below, which set aside a jury verdict of $9,000 in his favor.
Plaintiff was injured in August, 1929, on State Highway No. 21 at a point between Mt. Hope and Beckley where the paved highway, nine feet in width, passes beneath an overhead mine track or tipple maintained by defendant, Cranberry Fuel Company, and supported by bents or timber piers, about eighteen feet apart, which is the width of the highway for vehicular traffe at this point. Driving from Beckley in the direction of Mt. Hope, the road is straight for a distance as one approaches the tipple, but the road curves to the left on the Mt. Hope side, the apex of said curve being at the tipple; and the timbers obstruct the view of the road. According to plaintiff, the timbers supporting the mine track on the east side of the road are located about the center of a thirty-foot public right of way. Plaintiff, driving his motorcycle in a southerly direction toward Beckley, followed a Chrysler automobile which was about ten feet ahead of him. Homer Ricketts, driving a Jewett car toward Mt. Hope, met the Crysler car just before he (Ricketts) entered that part of the road covered by the trestle, and he stated that when it became necessary to strike either the timbers on his right or the plaintiff, he turned his car to the left and struck plaintiff's motorcycle about the center thereof, inflicting such injury that plaintiff's leg had to be amputated.
Plaintiff, basing his right of recovery on that portion of the state road law relating to obstructions of the public highway, charges that the timber supports on the east side of the road are on the public right of way in violation of the road law, thus constituting a public nuisance and being the proximate cause of his injury. Since the gist of plaintiff's action is based on the statute, our first inquiry is whether the maintenance of the timbers on the right of way was a violation of the state road law.
Under the provisions of chapter 17, article 16, section 1, Official Code, an obstruction is anything which prevents "the easy, safe and covenient use of" the public road for public travel, in which case such obstruction is by the statute declared to be a public nuisance. But, not all obstructions are nuisances per se. County Court v. Adams, 109 W. Va. 421, 155 S. E. 174. The highway is approximately eighteen feet wide at the point where the trestle crosses it. Although plaintiff testifies that the distance between the piers has been widened since the injury, the preponderance of evidence is to the contrary. Engineer Curtis, testifying on behalf of plaintiff, stated the distance to be eighteen feet at the time of trial, but that the road had apparently been widened in "the last year or so;" but witness Knighton stated that he measured, the distance between the piers eight years ago, at which time it was eighteen feet two inches (or three inches) between the piers. Numerous persons, living in the immediate vicinity testified that there had been no change in the position of the piers. When asked "Did you see the old pier moved from the location it was in?", plaintiff replied in the negative, but stated that he had observed from an automobile as he passed the tipple that To explain this, defendant's mining engineer stated that reinforcement timbers had been placed on the trestle after the injury "but there has been no movement of any timbers." This is verified by other testimony. That the road is wide enough to permit two cars to pass is evidenced by the statement of witness Carter, a bus driver, who, admitting if he met "a truck it would be a close place to pass" and that he approached the tipple cautiously, stated that he even passed other busses at that point.
The timbers alleged by plaintiff to constitute a public nuisance are situate about the center of the thirty-foot strip of land deeded by the defendant to the county court of Raleigh County in 1913, when the road then existing was located west of the present road. Several years later, and about the time that the county court of Raleigh County paved the nine-foot roadway between the piers, defendant, at the request of the county road engineer, moved the piers to their present position. To remove the eastern pillar without permission from the road commision would subject defendant to a prosecution for misdemeanor, penalty for which is from $25.00 to $100.00. Official Code, 17-16-6. It must be remembered that this trestle was there before the road was constructed, and the road was laid out by the county authorities with reference to defendant's timbers and placed at the required...
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Butler v. Smith's Transfer Corp.
...over oral testimony, and where verdicts are inconsistent with such facts, such verdicts will be set aside. Daniels v. Cranberry Fuel Co., 111 W.Va. 484, 163 S.E. 24; Marshall v. Conrad, 118 W.Va. 321, 191 S.E. 553; Collins v. Woodmen of World Life Ins. Soc., 124 W.Va. 195, 19 S.E.2d 586; Re......
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Thacker v. Ashland Oil & Refining Co.
... ... with public travel and should not constitute a hazard or a ... public nuisance. In Daniels v. Cranberry Fuel Co., ... 111 W.Va. 484, 163 S.E. 24, this Court held that where proper ... ...
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Southern Pacific Co. v. Raish
...1921, 55 Cal.App. 498, 203 P. 1021, 1022, nor Aune v. Oregon Trunk Ry., 1935, 151 Or. 622, 51 P.2d 663, nor Daniels v. Cranberry Fuel Co., 1932, 111 W.Va. 484, 163 S.E. 24, all cited by appellant, nor other cases cited, can be construed as excusing the second negligence in a series of negli......
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Valentine v. Wheeling Elec. Co.
...Adams, 109 W.Va. 421, 429, 155 S.E. 174, 178 (1930). Moreover, "not all obstructions are nuisances per se." Daniels v. Cranberry Fuel Co., 111 W.Va. 484, 486, 163 S.E. 24, 25 (1932). See also Clay County Court v. Adams, supra, 109 W.Va. at 428, 155 S.E. at Obstructions within the meaning of......