Gibson v. City Of Huntington

Decision Date11 November 1893
Citation38 W.Va. 177,18 S.E. 447
PartiesGIBSON. v. CITY OF HUNTINGTON.
CourtWest Virginia Supreme Court

18 S.E. 447
38 W.Va. 177

GIBSON.
v.
CITY OF HUNTINGTON.

Supreme Court of Appeals of West Virginia.

Nov. 11, 1893.


Municipal Corporations—Defective Streets— Negligence—Burden of Proof.

1. A municipal corporation is absolutely liable for injuries caused by its failure to keep in repair the streets, alleys, sidewalks, roads, and bridges. Chapman v. Milton, 7 S. E. 22, 31 W. Va. 385.

2. A municipal corporation is liable for injuries sustained by the negligent management of its corporate property, to the same extent that private individuals are liable for the same character of negligence.

3. A municipal corporation is liable for injuries caused by its negligence in the discharge of, or failure to discharge, such duties as are purely ministerial, and not governmental or discretionary.

4. A municipal corporation is not liable for injuries caused by the negligence of its agents and officers in the discharge of, or omission to discharge, duties which are purely governmental or discretionary.

5. When the injury sued for is alleged to have been caused by the defendant's negligent use of its corporate property, or in the discharge or omission to discharge of a ministerial duty, the burden of proving negligence is on the plaintiff; and if the jury, by its determination, finds that the facts are not sufficient to sustain the charge of negligence, the court cannot disturb the verdict, even though it be of a different opinion. To do so would be a denial of the right of trial by jury guarantied by the constitution of this state.

(Syllabus by the Court.)

Error to circuit court, Cabell county.

Action by Eustace Gibson, administratrix of the estate of Mary Lewis, deceased, against the city of Huntington, to recover for the death of decedent. Defendant had judgment, and a new trial was denied. Plaintiff brings error. Affirmed.

Gibson, Hutchinson & Gibson, for plaintiff in error.

Campbell & Holt, for defendant in error.

DENT, J. Mary Lewis, an infant four years and five months old, while playing on the side of a road in the city of Huntington

on the ——day of May, 1892, was killed

by the falling of an embankment which had been left along the street or road as a barrier to keep travelers along the highway from driving into the adjacent creek. This embankment had been undermined to some extent by persons digging out sand and gravel, and was in a dangerous condition, as the death of the child bears witness. The street commissioner, after some excavating had been done, (how much, the evidence does not disclose,) put up a notice forbidding the taking of sand and gravel from this place; but afterwards (how long does not appear,

[18 S.E. 448]

nor how long before the accident) a man by the na me of Brown excavated sand and gravel, and hauled it away; for what purpose, is not revealed, but, so far as the evidence shows, it was without the knowledge of the municipal authorities. The jury were taken to view the place of the accident.

It is now firmly established, by a long line of well-considered decisions, that a municipal corporation is liable for injuries occasioned by its negligence in the following three classes of...

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