Foley v. City oe Huntington.
| Decision Date | 05 April 1902 |
| Citation | 51 W.Va. 396 |
| Court | West Virginia Supreme Court |
| Parties | Foley v. City oe Huntington. |
1. Personal Injury Negligence Question for Jury.
In an action on the case for damages for personal injuries where there is conflicting evidence as to the facts supposed to constitute contributory negligence the question is one for the jury and their verdict should not be disturbed unless it is clearly contrary to a decided preponderance of the evidence. (P. 404).
2. Authorities Cited and Approved.
Point 1 Syl. Kay v. R. R. Co., 47 W. Va. 467, (35 S. E. 973) reaffirmed and approved, (p. 404).
Error to Circuit Court, Cabell County.
Action, by H. G. Foley against the City of Huntington. Judgment for plaintiff, and defendant brings error.
Affirmed.
E. E. Willi am s and Scott & Lovett, for plaintiff in error.
R. L. Blackwood, John S. Makcum, and M. B. Hensley, for defendant in error.
This is an action of trespass on the case by H. G. Foley against the City of Huntington in the circuit court of Cabell County for personal injuries to the plaintiff by reason of a defect in side-walk in said city wherein he recovered judgment upon the verdict of the jury for twelve hundred dollars damages. On the 19th of July, 1899, the defendant demurred to the plaintiff's second amended declaration, which demurrer was overruled. A plea of not guilty was entered and issue thereon. On the 10th day of March, 1900, a jury was empaneled and sworn and on motion of the defendant the jury were instructed to return with their general verdict their answers and findings to the following seven questions. (The questions as given here are followed for convenience by the answers as returned by the jury.) Q. "Was the plaintiff at the time and place he received the injury he sues for in this case, proceeding in the exercise of reasonable care and caution?" Ans. "Yes." Q. "Did the plaintiff at the time and place of his alleged injury, exercise the degree of caution and prudence required of one of his age and physical condition in traveling upon and along the sidewalk or street?" Ans. "Yes." Q. "Did the plaintiff give his injury the proper and necessary treatment at the proper time, and if he failed to do so, is such failure the cause, in any degree of his subsequent suffering and aggravated injury?" Ans. Q. "Was the defect in the sidewalk complained of such an one as made the sidewalk at the place and time unsafe to be traveled by day and night in the ordinary mode by a person exercising ordinary care and caution?" Ans. "Yes." Q. "Was the defect in the sidewalk complained of, if any existed, plainly to be seen by the plaintiff at the time of the injury, if not, why not?" Ans. "'No." Q. "What caused Foley to fall?" Ans. "Stepping in hole." Q. "Was the defect such a one as a man passing the same and exercising ordinary care would be likely to discover in the night time?" Ans. "No." The general verdict of the jury was for plaintiff for the amount stated. Defendant moved to set aside the verdict as contrary to the law and the evidence and without evidence to support it and grant a new trial which motion the court overruled and entered judgment upon the verdict, to which ruling the defendant excepted and obtained a writ of error to said judgment, In the course of the trial defendant took three several bills of exceptions which were made part of the record in the case.
The first error assigned is the overruling of the demurrer to the second amended declaration. The only reason given to sustain the demurrer is contained in the petition for writ of error as follows: "While contributory negligence is negatived therein, the language describing the manner of the happening of the accident shows that the plaintiff voluntarily and deliberately stepped into the hole mentioned, and that such conduct on his part was the proximate cause of the injury." The declaration seems to be well drawn and carefully negatives contributory negligence, which was wholly unnecessary as contributory negligence is a defense which must be made affirmatively by the defendant. Sheff v. Huntington, 16 W. Va. 307, Syl. pt. 3. It is alleged that there was a hole in the sidewalk and that plaintiff "stepped into the said hole and stumbled and fell, and was thrown to the ground suddenly and with great force and violence, and was then and there greatly injured, bruised," etc. The declaration is clearly sufficient and the demurrer properly overruled. Bill of exception No. 1 was to the giving of five several instructions to the jury for the plaintiff over the objections of the defendant. Instruction No. 1 is as follows: "The jury are instructed that if they believe from the evidence in this case, that the sidewalk in the declaration mentioned was a public sidewalk within the corporate limits of the defendant, the city of Huntington, opened up, worked, treated and controlled by the defendant as such sidewalk; and that the said sidewalk was out of repair, in a bad condition and unsafe for travel, at the time of the plaintiff's alleged injury, and that by reason of the said sidewalk being so out of repair and in a bad and unsafe condition, the plaintiff was injured, then the plaintiff is entitled to a verdict in this case; unless the jury are satisfied that the plaintiff was guilty of contributory negligence on his part, and that such negligence was the proximate cause but not the remote cause of his injury, and the jury is further instructed that the burden of proof of establishing such contributory negligence is upon the defendant, the City of Huntington." It is insisted by defendant that this instruction is bad under the ruling in McCreery v. Railroad Co., 43 W. Va. 110, where it is held: The instruction under consideration does not ignore the question of contributory negligence, but it is particularly stated that if they find from the evidence that the sidewalk was a public sidewalk within the corporate limits worked, controlled, etc., by the defendant and was in the condition described, they should find for the plaintiff, unless they should further find plaintiff was guilty of contributory negligence. Defendant relies upon Yeager v. Blue field, 40 W. Va. 484 and Wilson v. City of Wheeling, 19 W. Va. 323, where it is said: Whether the sidewalk was in the condition alleged in the declaration, and about which the evidence in case at bar was conflicting, was a question of fact for the jury. The question was, what was the condition of the sidewalk at the place where the accident occurred, not the condition of the streets and sidewalks in other parts of the city. Plaintiff in his testimony says: They were putting in a sewer pipe, or something like that, and there was a hole there and a plank on each side of it, in the center of the hole there were some bricks thrown; there was snow on the ground and it was hard to see. He further says in trying to save himself he fell right into the bricks. McCollister, who was with plaintiff when he was hurt, said it was about nine or ten o'clock; they were going up Twelfth street. He says there was about three or four inches of snow on the ground; that he just kind of stepped in front of Foley because he knew how to cross it, and passed on across and just as he reached the three planks on the other side, about find, time Foley stepped off and fell on the plank beside him and fell over into the bricks and witness turned to pick him up. McCollister said that this happened either the 25th of December or the 1st of January; that he knew it was an holiday; and the walk had been in that condition from the time the work was completed in September or October and remained in that condition until along in the spring and then there was some dirt thrown into it, and along in July they laid the pavement. He said, in speaking of the time of the accident: He further said that lie went to see the place the next morning and saw the evidence where lie had stepped off of the plank and come onto the raised dirt, and it looked like he had stepped down once and the next time it looked like he had not hit the bottom, and it just seemed that he had bounded along and struck the bricks. Hezekiali Hager said the sidewalk was, at that place, in bad...
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