Garr v. City of McMechen

• Decision Date: 14 September 1920
• Docket Number: 4007.
• Citation: 104 S.E. 101,86 W.Va. 594
• Parties: GARR v. CITY OF MCMECHEN.
• Court: West Virginia Supreme Court

104 S.E. 101

86 W.Va. 594

GARR v. CITY OF MCMECHEN.

No. 4007.

Supreme Court of Appeals of West Virginia.

September 14, 1920

Submitted September 7, 1920.

Syllabus by the Court.

While the authorities of a municipal corporation, in the exercise of a proper discretion, may determine not to pave or improve the entire surface of one of the public streets, yet the public have a right to use the unimproved part thereof; and if such unimproved part is rendered dangerous for use in the ordinary way, by secret or hidden perils created therein by the municipality itself, one injured by reason thereof will be entitled to recover damages for such injuries.

The duty of a municipal corporation to keep its public streets and alleys in a reasonably safe condition for travel thereover in the ordinary mode, by day or by night extends, not only to that part of such streets actually used for travel, but to adjacent parts so close to the traveled way as that it may reasonably be contemplated that obstructions thereon or defects therein may cause injury to travelers, should they slightly diverge from the beaten path or traveled way.

Error to Circuit Court, Marshall County.

Action by Elizabeth Garr against the City of McMechen. From a judgment setting aside a verdict in her favor, plaintiff brings error. Reversed, verdict of jury reinstated, and judgment rendered thereon for plaintiff.

Martin Brown, of Moundsville, for plaintiff in error.

J. C Simpson, of Moundsville, for defendant in error.

RITZ J.

This writ of error brings up for review a judgment of the circuit court of Marshall county setting aside the verdict of a jury rendered in an action for personal injuries received by the plaintiff on one of the streets of the defendant.

The plaintiff was at the time of the injury complained of a resident of the defendant, a municipal corporation, and on the day of the accident had occasion to go from her place of residence to a store situate on the north side of Eleventh street in said city; the plaintiff's residence being south of Eleventh street, so that it was necessary, in order to reach her destination, to cross this street. It appears that the north half of Eleventh street has been paved by the city authorities, and that a sidewalk has been laid on the north side of said street; the south half of said street remaining unimproved, and without a sidewalk being laid on that side thereof. The plaintiff, in going from her home to her destination, when she reached Eleventh street, proceeded along the south side thereof, on which there was no sidewalk to a point at which an alley intersects with said street, at which point she crossed Eleventh street to the north side thereof, and practically the same route was traveled by her in returning. It appears that on the south side of said Eleventh street, very near the point at which the alley above referred to intersects with said street, the city authorities, several years before the accident excavated a catch-basin to be used as part of a proposed sewerage system. This basin was 3 or 4 feet deep and some 2 or 3 feet in diameter. After it had been excavated and walled up with brick, it was covered over with boards, and upon these boards dirt was thrown, so as to give the top thereof the same appearance as the surrounding surface of the street. This catch-basin remained in this condition for a number of years before the injury complained of. Upon plaintiff's return trip, while crossing Eleventh street, she stepped upon the surface over this catch-basin, and, because of the fact that the boards which covered it had become rotten and decayed, the same broke with her and allowed her to fall in, resulting in the injury of which she complains.

The principal contention of the defendant is that, inasmuch as this catch-basin was in a part of Eleventh street which was not improved, and not designed by it for public travel, it was under no duty to keep the same safe for such travel. The defendant's contention in effect is that when the plaintiff got off the paved street, or off the sidewalk provided on the north side of the street, she was virtually a trespasser. It is shown that she might have crossed Eleventh street at another point and reached the sidewalk on the north side. It is also shown that many people crossed at the mouth of the alley where the plaintiff crossed, and that there was a well-defined path on the south side of Eleventh street and across the same at the mouth...