Gibson v. City of Huntington
| Decision Date | 11 November 1893 |
| Parties | GIBSON v. CITY OF HUNTINGTON. |
| Court | West Virginia Supreme Court |
Submitted June 22, 1893.
Syllabus by the Court.
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 not 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.
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.
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, nor how long before the accident) a man by the name 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 cases: (1) Failure to keep its streets, alleys, sidewalks, roads, and bridges in repair, under the statute. (2) In the discharge of ministerial or specified duties, not discretionary or governmental, assumed in consideration of the privileges conferred by charter, even though there be the absence of special rewards or advantages. (3) As a private owner of property, to the same extent as individuals are liable. It would be impracticable to cite all the authorities settling these propositions, but the following are referred to as leading cases: Mendel v. City of Wheeling, 28 W.Va. 233; City of Richmond v. Long's Adm'rs, 17 Grat. 375; Orme v. City of Richmond, 79 Va. 86; Mackey v. City of Vicksburg, 64 Miss. 777, 2 So. 178; Barnes v. District of Columbia, 91 U.S. 540. In the first class of cases, negligence is presumed, and notice of defect is not required. In the second and third classes, negligence must be alleged and fully proven. Chapman v. Milton, 31 W.Va. 385, 7 S.E. 22; Biggs v. Huntington, 32 W.Va. 55, 9 S.E. 51.
This suit is not proper under the first class, or statutory provision, because it was not caused by any defect or obstruction in the roadbed; but it can be maintained under the two latter classes, because it is made the ministerial duty of the municipality, by law, to protect the public and individuals from anything dangerous, and the embankment that caused the injury was maintained by the city as its property in lieu of other barrier along and within the boundaries of a public highway. The city has no more right to erect or keep within or along a public highway an unnecessarily dangerous structure, even though it be for some public purpose, than an individual. It is true that the city did not erect this embankment, but, as the witness said, it was placed there by nature, and the city adopted and maintained it as a barrier to prevent travelers from driving into the creek. Had there been an artificial structure so rudely constructed of stone, wood, or iron as to fall of its own weight, and crush this child, the liability of the city would not have been questioned; and it certainly ought to make no difference whether the city builds or adopts one already there, even though nature was the original builder. It was its ministerial duty, neither governmental nor discretionary, to see that it was not dangerous to any one lawfully using the road, or any part...
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