O'Hanlin v. Carter Oil Co.
| Citation | 46 S.E. 565,54 W.Va. 510 |
| Parties | O'HANLIN v. CARTER OIL CO. |
| Decision Date | 02 February 1904 |
| Court | West Virginia Supreme Court |
Submitted June 16, 1903
Syllabus by the Court.
1. Streets and sidewalks are designed for the use of the public and the use of them by an individual simply for his own convenience and accommodation, unaccompanied by any public use, as for drains, private crossings, sewers, vaults cesspools, or other obstructions or excavations, is unauthorized, and essentially a nuisance, for which such individual is liable for all damages sustained in consequence of the improper appropriation of the street or sidewalk to his mere personal use.
Error from Circuit Court, Tyler County; M. H. Wilis, Judge.
Action by John O'Hanlin against the Carter Oil Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Roberts & Carter and T. P. Jacobs, for plaintiff in error.
McIntire & McIntire, for defendant in error.
On the 17th day of May, 1900, John O'Hanlin, the defendant in error, commenced a civil action, before a justice of the peace of Tyler county, against the Carter Oil Company, a corporation, for damages for an alleged wrong. The summons which contains the only description of the cause of action found in the record, alleges that on the _____ day of September, 1899, in the city of Sistersville, in the said county of Tyler, the defendant was the owner of a steam pipe or line used in conveying steam, which, among other points was buried on Virginia street, in said city; that defendant willfully and negligently caused said steam pipe or line to remain on said street, and to be used in conveying hot and scalding steam, while in a defective, unsafe, and dangerous condition, which defects were well known, at and before the time last mentioned, to said defendant; that at the time last mentioned, while plaintiff's daughter, Alice, aged five years, was passing over and along said Virginia street, in said city, the earth directly over said steam pipe or line, softened by escaping steam, from said defective steam pipe or line, gave way, precipitating his said daughter, Alice, into the orifice, which was filled with hot water and scalding steam, which was then and there escaping from said steam pipe or line, scalding and burning his said daughter, Alice, on the legs, arms, hands, and body, for which plaintiff claimed $300 damages. There was a trial of the action by the said justice, and judgment rendered by him against the defendant for $250, with costs. From this judgment the defendant was granted an appeal to the circuit court of said county, wherein the action was again tried upon the pleadings made up before the justice, and upon the plea by the defendant of "not guilty of the trespass in the declaration mentioned," and joinder therein by plaintiff filed in the circuit court. The latter trial was by a jury.
At the close of plaintiff's evidence in chief, the defendant moved to exclude the same from the jury, which the court refused to do, and the defendant excepted. The defendant then introduced its evidence, and demurred to the evidence adduced in the case, in which demurrer the plaintiff joined. Thereupon the jury found the usual conditional verdict, assessing the plaintiff's damages at $165, if the law should be for him. Upon consideration thereof, the court overruled the said demurrer, and rendered judgment upon the verdict against the defendant for said $165, and for the plaintiff's costs, both in court and before the justice. To the ruling and judgment of the court aforesaid, defendant excepted, and also moved the court to set aside said verdict and judgment and grant it a new trial of the action, which the court also refused to do, and the defendant again excepted. The several rulings of the court, the exceptions thereto by defendant, and all of the evidence introduced and considered on the trial are certified in bills of exception and made parts of the record. To the last-mentioned judgment the defendant was granted a writ of error, and assigns various errors in the record of the proceedings in the circuit court, not necessary to be here set out in detail.
The material statement of the alleged negligence of the defendant in the summons, treated as a declaration, is: That the defendant was the owner of a steam pipe or line used in conveying steam, which, among other points, was buried on Virginia street, in said city; that defendant willfully and negligently caused said steam pipe or line to remain on said street, and to be used in conveying hot and scalding steam, while in a defective, unsafe, and dangerous condition, which defects were well known to said defendant at and before the time last mentioned.
The facts are: Prior to July, 1899, plaintiff in error, the Carter Oil Company, owned a certain oil well in Sistersville, near Virginia street. This street was then unpaved, and without curb lines or sidewalks. The company had a boiler house, from which a two-inch steam line, belonging to it, ran across the street to its said oil well. About the time last mentioned, the city of Sistersville gave notice to the said company to lower its steam line, so that pavement of the street, which had been determined upon by the city, could be laid over said line. The steam line was thereupon lowered by the company as directed. This work was done under the direction of the foreman of the company and the city engineer, and to the satisfaction of the latter. Not long before the paving was done, one O. P. Collins had built a dwelling house over the steam line. The distance between the house and the curb line of the street, after it was put in, was about 10 feet. Between the curb line and the house the ground was lower than the level of the paved street. After the steam line was lowered it passed through the curb line, but remained some distance above the surface of the ground, between the curb and the house. Under the pavement of the street, the steam line was encased in another iron pipe, but between the curb and the house it was inclosed in a wooden steam box, supported by what is called a "horse," made by nailing two legs on a board or other piece of timber. Some of the dirt excavated and taken from the street, preparatory to the paving of it, was used in bracing and holding the curb in place at the point where the steam line passed through it, and some of it was placed at the point where the line passed under the house. Some time after the curbing had been put in and the steam line covered in front of the house as aforesaid, other filling with dirt was done there by some one other than the Carter Oil Company, and without its knowledge. By whom it was done the evidence does not show, but it strongly tends to prove that the employés of the city did it. The dirt filling on the steam pipe where it left the curbing was about three feet in thickness. This filling along the curb was not paved, but was used and traveled as a sidewalk.
On the 1st day of September, 1899, while said Alice, who had gone to the Collins house on a visit the day before, was playing on the fill or dirt sidewalk over the steam line, her foot and leg went down in a hole or opening filled with hot mud and escaping steam, and they were burned. Miss Mollie Collins the only witness for the plaintiff who testified as to the condition of the place where the accident occurred, says that she came with Alice to Collins' the day before from New Martinsville, where they both resided; that Alice was playing, out where the pavement should have been; that she heard a scream, and went out to see what was the matter; that the ground had given away, and let the child in where the steam pipe was; that she did...
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