Dicken v. Liverpool Salt & Coal Co.

• Decision Date: 07 December 1895
• Citation: 23 S.E. 582,41 W.Va. 511
• Parties: DICKEN v. LIVERPOOL SALT & COAL CO.
• Court: West Virginia Supreme Court

23 S.E. 582

41 W.Va. 511

DICKEN v. LIVERPOOL SALT & COAL CO.

Supreme Court of Appeals of West Virginia.

December 7, 1895

Submitted September 12, 1895

Syllabus by the Court.

1. Negligence is the violation of the duty of taking care under the given circumstances. It is not absolute, but is always relative to some circumstance of time, place, manner, or person.

2. The mere use of a road by the public, for however long a time will not make it a public road. On the contrary, the mere permission by the owner of the land to the public to pass over the road is, without more, to be regarded as a license revocable at pleasure.

3. If intended to be dedicated to the public by the owner of the land, it must in some way, directly or by inference, be accepted by the county court or municipal corporation upon its record before it can become a public road.

4. A party who is using his own property in a lawful way cannot be guilty of a breach of duty to any one.

5. The negligence of a parent cannot be imputed to the infant child too young to know how to take care of itself; nor can such child be guilty of contributory negligence.

6. It is not proper, in a suit for negligence, to instruct a jury that, if they believe from the evidence that the plaintiff has proved the material allegations of his declaration, they should find for the plaintiff. What is a material allegation is a question of law for the court.

7. A case in which these principles are applied.

Error to circuit court, Mason county.

Action by William H. Dicken, who sues by his next friend, Horace L Dicken, against the Liverpool Salt & Coal Company. Judgment for plaintiff. Defendant brings error. Reversed.

J. B Menager, H. R. Howard, and Brown, Jackson & Knight, for plaintiff in error.

W. R. Gunn, L. C. Somerville, and C. E. Hogg, for defendant in error.

HOLT, P.

On writ of error to a judgment of the circuit court of Mason county, rendered on the 30th day of November, 1893, for $1,800 damages for injury done to the infant plaintiff. Plaintiff, an infant, suing by his next friend in trespass on the case, in his declaration and his amended declaration containing three counts averred in substance that the defendant, a corporation existing and doing business in this state under and by virtue of the laws thereof, was on the 30th day of May, 1892, the owner and operator of a certain horse tramway and carriages in the town of Hartford, Mason county, W. Va., leading from its salt house to its salt shed on the bank of the Ohio river, running along, over, near by, and across certain streets, roads, and public places in the said incorporated town of Hartford; that on said day the plaintiff, who was 2 years and 10 months old, and unable to care for itself, was on and near the tramway, not far from defendant's salt house, and while plaintiff was thus on and near the tramway the defendant, by its servants and agents, so negligently and carelessly used, managed, and run its carriages on the tramway that by reason of the carelessness of the driver of the mule and carriage on and along the tramway, and of the insufficient and improper tackle attached to the mule, and the want of time to stop and check the mule, the said mule and carriage ran upon and over the plaintiff, and thereby so wounded and maimed the plaintiff that it became necessary to amputate the right leg of plaintiff, which was done accordingly, whereby plaintiff has become permanently disabled, has been compelled to pay out and expend $500 in money, and has sustained damages to the amount of $10,000, and therefore he brings suit, etc. The second count averred, in addition, that the mule was driven at a greater rate of speed than was permitted by the ordinances and municipal regulations of said town, and by a servant who failed and neglected to keep the proper outlook so as to avoid injury to those who, being infants, were not able to take care of themselves. The third count adds that the plaintiff, when injured, was on the premises of defendant near the public highway, etc. The defendant demurred to the declaration and to each count, but the court overruled the same, and I think properly. Thereupon the defendant pleaded not guilty.

Negligence is the violation of the duty of taking care,--such care as the circumstances impose. "There is no absolute or intrinsic negligence. It is always relative to some circumstance of time, place, manner, or person." Degg v. Railway Co., 1 Hurl. & N. 773, 781; 1 Bev Neg. 11; Railway Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679. What, then, are the facts of this case which are supposed to impose on the defendant the duty of taking care which they have neglected? It is the owner of a salt furnace and tract of land situated on the Ohio river, in the county of Mason, and town of Hartford; and this furnace has been in operation for some twenty-odd years. It has a horse tramway leading in part through its land from the furnace to the salt house and from the salt house a certain distance through its land, thence out and across a street and into a salt shed at a landing on the bank of the Ohio river. This tramway is as old as the furnace. It is indispensable to the running of the furnace, to carry to it coal, to carry ashes and cinders away, to carry salt to the depot, to the landing at the river, etc. The business could not be carried on without it. It has not found it at all convenient to keep it closed where it enters into its property, but sometimes has practically closed it with its bromine works for a short time. That it has not seen fit or found it necessary to object to people generally coming and going upon it for a period of 20 years is no more a dedication of it to the public, according to the facts of this record, than it is a dedication to the public of its salt property, to and from and through which people are constantly coming and going. Both are of private ownership; the one where it runs through the land in question quite as much as the other. On the 30th day of May, 1895, the defendant, by its driver, was hauling salt from its salt house to its salt shed at the landing on the Ohio river. As the driver returned from the river along the tramway with the mule in a trot, and crossed a public street, and entered the grounds of defendant, he was warned by a gentleman in a store he passed that there was a small child ahead on the track, which, up to that moment was out of sight. Instantly he applied...