Hesser v. Grafton
| Decision Date | 15 March 1890 |
| Citation | 11 S.E. 211,33 W.Va. 548 |
| Parties | HESSER v. GRAFTON. |
| Court | West Virginia Supreme Court |
Submitted January 15, 1890.
Syllabus by the Court.
1. In an action against a municipal corporation for injuries caused by an obstruction of a street or sidewalk, when the evidence of the plaintiff proves such facts and circumstances as show that the plaintiff was guilty of contributory negligence in causing the injuries, the court should, on the motion of the defendant, exclude all the plaintiff's evidence from the jury.
2. Where the evidence of the plaintiff proves that the plaintiff, in passing along the street of a town on a dark night, without a lantern or other light, fell over a rock in the middle of the street, and injured herself, when she knew that both the street and sidewalk were out of repair dangerous, and obstructed by dirt, rocks, and building material, she will be held to be guilty of contributory negligence, notwithstanding the town authorities neglected to indicate said obstructions by beacons or danger signals, as it was their duty to do.
M. H Dent, for plaintiff in error.
John H Holt, for defendant in error.
SNYDER P.
Writ of error to a judgment of the circuit court of Taylor county pronounced August 3, 1889, in an action brought in said court by Adeline M. Hesser against the town of Grafton, to recover damages for injuries alleged to have been sustained by reason of the negligence of the defendant in failing to keep in repair a certain sidewalk and street within its corporate limits. The case was tried by jury on the issue of not guilty, and verdict and judgment rendered in favor of the plaintiff for $920. The defendant took certain exceptions to the action and judgment of the court, and to review the errors a lleged therein it obtained this writ of error.
The first error assigned by the plaintiff in error is that the circuit court erred in overruling its motion to exclude from the jury the evidence of the plaintiff, on the ground that it was insufficient to sustain the issue on her part. The material evidence of the plaintiff tended to prove the following facts: The defendant, the town of Grafton, is a municipal corporation, and Latrobe street, on which the plaintiff was injured, is one of the streets of said town which it is its duty under the law to keep in repair. The plaintiff, a woman 55 years of age, while passing along the middle of said street, about 10 o'clock on the night of December 11, 1887, fell over a stone and broke her leg, and suffered other injuries. The night was very dark, and raining. In July preceding the injury a large part of the town of Grafton was destroyed by fire, including the buildings on Latrobe street. The original sidewalk on this street was not over four feet wide. It was on the south side. There was none on the north side; and, when the buildings were burned away, the sidewalk, which had been made in part of plank and in part of flag-stones, was left in a very dilapidated and unsafe condition, and before and at the time of the injury some of the owners of the lots abutting on this sidewalk were putting up new buildings, leaving on the sidewalk piles of sand, brick, and other débris also leaving in the street loose rock and other building material, whereby, at the time and place the injury occurred persons had difficulty in passing along the sidewalk in day-time, and generally used the road-way of the street, picking their way among the rocks and other obstructions, in order to pass along that portion of the street. There were no barriers or railing of any kind along the south side of the sidewalk to prevent persons from falling or walking into the pits and holes left open by the burning of cellar doors of the abutting buildings. Neither the defendants, nor the persons using the street for depositing thereon building material, put out beacons or danger signals to notify travelers of the obstructions on the sidewalk and in the street; nor was there any ordinary street lamp so near as to enable travelers to observe and avoid these obstructions. The plaintiff lived in the eastern part of the town, and was employed as assistant cook at the Grafton House. She had been so employed for some time, and in going and returning to her home from the Grafton House she passed along this street twice each day for several months prior to the injury. She passed down to the hotel in the morning between 6 and 7 o'clock, and usually returned between 9 and 10 at night. The plaintiff testified that before the night she was injured her grandson always brought her a lantern, which she used every night in going home, but on this night he did not bring her the lantern, and she had none when she was injured; that on that morning she passed down Latrobe street, and, observing that the sidewalk was obstructed and impassible, she, on returning that night, went out into the street, and attempted to...
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