Et Ux. v. The City Of Huntington.

Decision Date27 March 1880
Citation16 W.Va. 307
CourtWest Virginia Supreme Court
PartiesSheff et ux. v. The City of Huntington.

1. If a person is injured by reason of a public road being out of repair, the corporation, whose legal duty it is to keep the road in good re-pair, is liable to him for damages, whether it had notice of such defect, or not.

2. In such a case it is not necessary to allege and prove that the corporation knowingly and negligently permitted the road or street to get out of repair.

3. Neither is it in such a case necessary for the plaintiff to allege in his declaration and prove, that he was using ordinary care:, and was not therefore guilty of negligence which contributed to his injury.

4. In an action for injury, if the negligence of the plaint: ff contributed to produce the injury complained of, that is purely matter of defence, and the burden of proof is on the defendant.

5. If the evidence, whether introduced by the plaintiff or defendant, shows that the negligence of the plaintiff was the proximate cause of the injury, the plaintiff cannot recover in the action.

6. Whether the negligence of the plaintiff was the proximate cause of the injury, is a question for the jury.

7. Remote negligence of the plaintiff will not prevent his recovery for an injury immediately caused by the negligence of the defendant.

8. The negligence of the plaintiff, which defeats his recovery, must be a proximate cause of the injury.

9. Where there is an assumption of a fact in an instruction given to the jury, and the evidence which is certified as to the correctness of the assumption is so full and uncontradicted as to necessitate the inference that it was undisputed or tacitly admitted, the judgment will not be reversed because the fact was so assumed to be true.

10. It would be error to instruct the jury, that "if anything else than the negligence of the defendant contributed to produce the injury complained of, the plaintiff cannot recover."

11. Where a bill of exceptions to the judgment of the court refusing a new trial certifies all the evidence introduced on the trial, instead of the facts proved, an Appellate Court will not consider the parol evidence of the exceptor, so far as it is in conflict with that of the defendant in error; and when the evidence, as it thus appears, does not show that the verdict was contrary thereto, the judgment should not be reversed.

12. A new trial, asked on the ground that the verdict is contrary to the evidence, ought to be granted only in a case of plain deviation from right and justice, and not in a doubtful case merely because the court, if on the jury, would have given a different verdict.

13. Where a case has been fairly submitted to a jury, and a verdict fairly rendered, it ought not to be interfered with by the court, unless manifest wrong and injustice have been done, or unless the verdict is plainly not warranted by the evidence or facts proved.

14. Where some evidence has been given which tends to prove the fact in issue, or the evidence consists of circumstances and presumptions, a new trial will not be granted merely because the court, if upon the jury, would have given a different verdict. To warrant a new trial in such cases, the evidence should be plainly insufficient to warrant a verdict. And this restriction applies a fortiori to an Appellate Court.

15. In an action for an injury, where it is material to the plaintiff's case to prove that a road, mentioned and described in the declaration, is a public road, and the uncontradicted evidence before the jury shows that the said road had been used as a public road for forty years, and that the street commissioner of the city defendant in the action, had for years kept it up as such, the jury are warranted in finding that it was a public road.

16. The question of contributory negligence is for the jury to determine, and unless from the certificate of the evidence or facts proved it appears, that the evidence on the subject of contributory negligence was such that the court would be justified in setting aside the verdict and granting anew trial, the verdict will not be set aside on thejground that the plaintiif was guilty of contributory negligence, it being a question of fact and not of law.

17. In an action against a city for damages, caused by a defective road or street, the evidence shows that the plaintiff's leg was broken, and she was unable to walk inconsequence thereof for four months, and suffered great pain, and was put to considerable expense in consequence of the injury, and the jury rendered a verdict for $1,811.67 damages. The court will not set aside the verdict on the ground that the damages are excessive.

Writ of error and supersedeas to a judgment of the circourt of the county of Cabell, rendered on the 30th day of March, 1878, in an action of trespass on the case, wherein George Sheff and Margaret S. Sheff, his wife, were plaintiffs, and the said The City of Huntington was defendant, allowed upon the petition of the said defendant.

Hon. Evermont Ward, judge of the ninth judicial circuit, rendered the judgment complained of.

Johnson, Judge, furnishes the following statement of the case:

This is an action on the case for damages suffered by female plaintiff, by reason of a certain road in said city being out of repair. The declaration was filed at Febuary circuit court rules, 1877. The declaration is as follows:

"George Sheff and Margaret Scheff, his wife, complain of the city of Huntington, a corporation organized, existing and doing business under the laws of the State of West Virginia, which has been duly summoned, &c, of a plea of trespass on the case: For this, that whereas, before and at the committing of the grievances, wrongs and injuries hereinafter mentioned, there was a common and public highway or road running along the bank of Guyandotte river on the lower or west side of said river through a part of said city of Huntington, and within the corporate limits theieof, in the said county of Cabell, intersecting Thirty-first street of said city, over, on and upon which said common and public road the citizens of this State and all others had the right to travel, pass and repass without hinderance or obstruction, and it was the duty of the said defendant to put and keep that part of the said common and public road that was within the corporate limits of the said city ot Huntington in good repair; yet the said defendant well knowing the premises heretofore, to wit, on the 1st day of October, 1876, and for a long time previous thereto, at the county and city aforesaid, wrongfully and injuriously allowed and permitted that part of the said common or public road situated in its corporate limits to become and remain in bad condition, order and repair, in this: That the said defendant allowed the said road to become sideling, and permitted a large rut to be worn in, along and across said public road at or near a sugar-tree, standing in or on the side of said road a short distance above the place the Chesapeake and Ohio railroad crosses said public road, in the city and county aforesaid, and within the corporate limits aforesaid, and by means whereof afterwards, to wit, on the day and year aforesaid, at the city and county aforesaid, the said plaintiff, Margaret 8. Sheff, wife of the plaintiff, George Sheff then lawfully riding, going and passing in, upon and along the said common and public road in and with a buggy to which one horse was attached and hitched, and on the sideling place aforesaid the said buggy slipped and slid, and the wheels on one side thereof fell into the said rut, whereby she, the said Margaret S. Sheff, was then and there violently thrown out of said buggy, and then and there was greatly injured, bruised, wounded and crippled, and her life put in great danger and peril, to wit, at the city and county aforesaid. Wherefore, and by means of the premises and the wrongs and injuries mentioned, the said plaintiffs have been greatly injured and have sustained damages to the amount of $5,000.00, and therefore they sue, &c."

On the 26th day of March, 1878, the defendant demurred to the declaration, which demurrer was overruled; and thereupon the defendant pleaded " not guilty." The trial before the jury commenced on the same day; and on the 29th day of March, 1878, the jury found for the plaintiffs and assessed their damages at $1,841.67. A motion for a new trial was submitted, which the court overruled, and entered judgment on the verdict. On the trial the court signed a bill of exceptions, taken by the defendant to the refusal of the court to give an instruction asked by it, and to the giving of two instructions at the request of the plaintiffs, and to the refusal of the court to set aside the verdict and grarttanew trial. The bill of exceptions certifies all the evidence, as it also does the instructions given and refused The instructions, and also so much of the evidence as is necessary to be considered are referred to in the opinion.

To the judgment of the court upon the verdict the defendant obtained a writ of error and supersedeas.

Eustace Gibson and Simms & Enslow, for plaintiffs in error, cited the following authorities:

Acts 1872-3, ch. 19-1, 60; 2 Dillon Mun. Corp. §§ 499, 500 and note, 505 and note 1, 2, 766-769; 6 N. Y. 257; 19 Ohio 238; 9 W. Va. 215; 43 Wis. 513; 28 Am. Rep. 558; 26 Me. 234; 43 Me. 492; 12 Pick. 177; 21 Pick. 146; Id. 254; 12 Mete (Mass.) 415; 6 Gray 64; 8 Allen 138; 101 Mass. 455; 27 Vt. 443; 23 Conn. 337; 19 Conn. 566; 18 N. Y. 246; 20 N. Y. 65; 24 N. Y. 430; 35 N. Y. 9; 28 Ohio St. 340; 16 111. 300; Id. 558; 13 111. 585; 50 Ind. 65; 41 lnd. 269;

42 Iowa 192; 28 Mich. 440; 51 Miss. 234; 17 Ga. 136; 22 Tex. 55; 9 Md. 108; 20 Am. Rep. 552; 3 Allen 402; 1 Dillon Mun. Corp. 9, 10 and note, 33, 35 and note, 60 and note, 230 and note 1; 5 Call 548; 5 Gratt, 241; 8 Gratt. 632; 25 Gratt. 830; 1 Dillon Mun. Corp. §§ 235-237 and note, 381-383 and note; 2 Dill...

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