HAMEY v. TOWN Of RAINELLE

• Decision Date: 02 March 1943
• Docket Number: (No. 9374)
• Court: West Virginia Supreme Court
• Parties: WOODROW HAMEY v. TOWN OF RAINELLE

125 W.Va. 397

WOODROW HAMEY

v.TOWN OF RAINELLE

(No. 9374)

Supreme Court of Appeals of West Virginia.

Submitted February 2, 1943.

Decided March 2, 1943.

1. Evidence

Testimony of a non-expert witness, who is shown to have had adequate opportunity for observation of the plaintiff in a personal injury action, relating to the plaintiff's alleged, suffering, is admissible.

2. Negligence

In a personal injury action, where there is substantial evidence tending both to support and to refute the defense of contributory negligence, the verdict of the jury will be considered as determining that issue.

3. Municipal Corporations

A walkway or other approach from a public street across privately owned land to a jail maintained by a municipality is not a "street or sidewalk or alley" within the meaning of Code 1931, 17-9-33, as amended by Acts of the Legislature, Extraordinary Session, 1933, Chapter 40, Article 10, Section 17, giving to "any person who sustains an injury to his person or property" by reason of the; ill repair, of such street, sidewalk or alley a right of action therefor against the municipality.

4. Arrest

The sergeant or other police officer of a town organized under the general statutes of this State, which has no jail, who has arrested a person for the violation of an ordinance of the town, may place such person in the jail of another town conveniently nearby to be there kept until it is practicable to bring him before the proper officer for giving bail or for trial.

5. Municipal Corporations

A municipal corporation, in receiving and detaining in its jail a person who has been delivered to it for that purpose by the sergeant of another town in the same county, is acting in a governmental capacity and performing a governmental function.

6. Municipal Corporations

A jail maintained by a municipal corporation and the walkway provided by the town for passage between such jail and the public street or other highway are governmental instrumentalities, and one injured by lack of repair of either has no right of action against the town.

7. Municipal Corporations

A sergeant of a town who is injured as he is in the act of leaving the jail of another town by stepping on and breaking through the inadequate covering of a ditch in or across the walkway or approach, not a street, sidewalk or alley, to said jail from a public highway, after having delivered into such jail one whom he had arrested for the violation of an ordinance of the town of which he was an officer, does not have a right of action for his injury against the town, which owned and maintained the jail.

Error to Circuit Court, Greenbrier County.

Action of trespass on the case by Woodrow Haney against the Town of Rainelle for personal injuries. Judgment for plaintiff, and defendant brings error.

Reversed, and case dismissed.

S. H. Sharp and Mahan, Bacon & White, for plaintiff in error.

A. N. Breckinridge, for defendant in error. Rose, Judge:

The Town of Rainelle prosecutes this writ of error to the action of the Circuit Court of Greenbrier County, in entering judgment for $4,425.00 on a verdict in favor of Woodrow Haney in an action of trespass on the case for personal injuries received by Haney in stepping upon and breaking through the covering of a ditch at or near the door of the town's jail, which he was leaving after having incarcerated therein a prisoner in his charge.

The Towns of Rainelle and East Rainelle are municipalities situated in Greenbrier County, organized under the general laws of the State, whose territorial limits are contiguous. East Rainelle has no jail. That of the Town of Rainelle consists of a concrete block building, located on a parcel of land, without public highway frontage and belonging to the Meadow River Lumber Company, at the rear of a lot on which stands the Knights of Pythias lodge building and which lot extends to and fronts on U. S. Highway No. 60. Immediately west of this lodge building and also fronting on Route 60 is a small building used as a business office, and west of this is a lot about two hundred feet in depth and with a frontage of one hundred and twenty-five feet and owned by the Rainelle Supply Company, and on which there is a building with a frontage of one hundred and four feet.

Access to this jail building was by a board walkway constructed and maintained by the town from Route No. 60 along the east side of the Knights of Pythias building, and, although without any arrangement or provision of the town therefor, persons approaching by automobiles frequently came to the rear of the building across the vacant portion of the land of Rainelle Supply Company, and that of the Meadow River Lumber Company. The second story of the building is leased to a firm of printers. On the first floor are the jail cells and the municipal offices. The Town of Rainelle has no title, by deed, lease, or otherwise, to the land on which its building stands or to any approach thereto.

From the time of the jail's construction, the town seems to have permitted its general use by the peace officers of the county, district and neighboring municipalities without any formal contract or ordinance or other record or written instrument relating thereto, and to have made the mayor's office room available to justices of the county for trial of cases and to the county for holding elections and for other public uses. For probably ten years what is called by the witnesses a "custom" or "practice" prevailed between the Town of Rainelle and East Rainelle by which the Rainelle jail was used for the incarceration of prisoners of East Rainelle, for which use the latter town paid at the rate of fifty cents for the use of the jail and one dollar a day for meals for each prisoner. No formal contract was ever entered into covering this matter, and no action by either municipality appears from their records.

In February, 1941, the Town of Rainelle, through its sergeant, excavated a ditch along the end and side of its building searching for a sewer line which served the jail, and which had become obstructed. This ditch passed in front of the only entrance door to the jail and between it and the walkway leading to the highway. At the close of work on Saturday evening, February 15, 1941, the ditch was filled, except about six feet thereof, which was either between the door and the boardwalk or beyond the boardwalk toward the rear of the building. The sergeant of the town covered this unfilled portion of the ditch with an old panel door, on which he placed certain boards or scantlings.

Shortly before midnight on February 15, 1941, the plaintiff, as sergeant of the Town of East Rainelle, arrested one McClung for drunkenness, and brought him by automobile to the rear of the jail across the land of the Rainelle Supply Company and the Meadow River Lumber Company, and thence on foot to the door of the jail. After incarcerating McClung, and as the plaintiff stepped from the jail entrance onto this covering of the ditch his left foot broke through one of the panels of the door causing him to fall. He nevertheless made his way to his car and thence to his home where he was treated by a doctor. The next day he was taken to a hospital where an operation for appendicitis was performed. On being discharged from the hospital, he went to Calhoun County, his wife's former home, and thereafter consulted a doctor at Parkersburg, who furnished a brace for his back. He claims to have received permanent injuries to his pelvic bone, his spine and to his hearing and eyesight.

No demurrer to the declaration was interposed, and no plea thereto except that of the general issue. The only errors assigned are that the court erroneously admitted the evidence of plaintiff's wife to the effect that her husband suffered and still suffers greatly, and that the court did not direct a verdict in defendant's favor, or set aside that in favor of the plaintiff.

The plaintiff's claim is based on the theory that the walkway and approaches to the jail entrance at the point where plaintiff received his injuries constituted a "street or sidewalk or alley" within the meaning of Michie's Code, 17-10-17, by which a municipality is made absolutely liable for injuries received by a person by reason of such street, sidewalk or alley not being in repair; or, in the alternative, that the use of the jail and its approaches, by reason of the arrangement, custom and practice between the two towns was a proprietary, instead of a governmental, enterprise as to the Town of Rainelle, whereby it would be liable for the dangerous condition of the ditch in question by which the plaintiff's injuries were caused.

We are clearly of opinion that this walkway and approaches to the jail entrance did not constitute a "street or sidewalk or alley" within the meaning of the statute mentioned. It was not a street; it was not an alley; and it was not a sidewalk. It was, in fact, a mere walkway from a public highway to the municipal building, and was constructed and maintained solely as a means of access thereto by persons having the right to resort to that building for the purposes for which it was constructed and maintained. The way was not for general travel by all people, to all places, for all purposes, but was for ingress and egress, to and from, a particular place for special and limited purposes. It was of precisely the same character as a walkway leading...