Higginbotham v. Kearse

• Decision Date: 03 November 1931
• Docket Number: 7123.
• Citation: 161 S.E. 37,111 W.Va. 264
• Parties: HIGGINBOTHAM v. KEARSE.
• Court: West Virginia Supreme Court

161 S.E. 37

111 W.Va. 264

HIGGINBOTHAM v. KEARSE.

No. 7123.

Supreme Court of Appeals of West Virginia.

November 3, 1931

Submitted October 28, 1931.

Syllabus by the Court.

Instrumentality maintained by owner of property abutting public street, which in its normal operation may inflict injury on pedestrian exercising ordinary care, constitutes "public nuisance."

Maintenance of screen door swinging outward partly over sidewalk from entrance to building flush with street constitutes "public nuisance."

An instrumentality, maintained by an owner of property abutting a public street, which in its normal operation may inflict injury on a pedestrian proceeding on such street with ordinary care, is inherently dangerous and constitutes a public nuisance. For injuries inflicted on such pedestrian by such instrumentality the owner is liable in damages. The question of negligence on the part of such owner does not arise, the act being wrongful.

The maintenance of a door which, when opened, swings outward partly over the sidewalk of a public street from an entrance to a building which stands flush with the street is a public nuisance.

Error to Circuit Court, Kanawha County.

Action by E. C. Higginbotham against T. L. Kearse. Judgment for the defendant, and the plaintiff brings error.

Judgment reversed, directed verdict set aside, and case remanded for a new trial. England & Ritchie, of Charleston, for plaintiff in error.

J. N Kenna and B. J. Pettigrew, both of Charleston, for defendant in error.

MAXWELL J.

This is an action for damages for personal injuries to the plaintiff. At the conclusion of the introduction of the plaintiff's evidence, on motion of the defendant, the court struck out the plaintiff's evidence and directed a verdict for the defendant. Writ of error was awarded the plaintiff.

Defendant owns a building which fronts and binds on a public street of the city of Charleston. The apartments on the second floor of the building are reached by a stairway. The means of entrance to the stairs is a doorway in the front of the building at the street. The principal or "weather" door at this entrance swings on the inside. A screen door swings outward over the sidewalk. On the night of February 15, 1930, as plaintiff was walking past defendant's said building a man who had been visiting a tenant on the second floor and had descended the stairs and was just emerging from the building, pushed open the screen door which struck the plaintiff causing him to fall on the icy sidewalk with resultant serious injuries. This action for damages followed.

It is conceded that the question of negligence on the part of the defendant is not involved, but that the case must be determined on the queries, first, as to whether the defendant in keeping a screen door so as to swing over the public sidewalk for a part of its width was guilty of maintaining a public nuisance; and, second, as to whether the plaintiff was himself negligent. What constitutes a public nuisance is a question of law. 46 Corpus Juris, 812; Price v Travis, 149 Va. 536, 140 S.E. 644, 56 A.L.R. 209. Whether a plaintiff is guilty of negligence when he receives an injury from an alleged public nuisance is primarily a jury question, but it, too, may become a question of law on uncontradicted evidence.

Predicating his position on the proposition that "the right of the public to the use of streets, highways, sidewalks, and like public ways, is subject to the reasonable use thereof by the abutting owners for purposes other than travel," the defendant says that the mere permitting of a screen door to swing out over a sidewalk for a part of its width is a reasonable use of the sidewalk and does not constitute a public nuisance, and that liability does not attach per se to the owner of the building for injury to a pedestrian caused by the door's striking him when swinging open. Among other authorities, he cites our case of Williams v. Coal Co., 83 W.Va. 464, 98 S.E. 511, 514, as follows: "But it is not every obstruction to the free and unrestricted use of a public road or street, even if unauthorized by the proper authorities, that constitutes a nuisance or is actionable in damages. The right of the public to the free and unobstructed use of a highway or street is subject to reasonable and necessary limitations and restrictions." Two Massachusetts cases cited by defendant, Van O'Linda v. Lothrop, 21 Pick. 292, 32 Am.Dec. 261, and Underwood v. Carney, 1 Cush. 285, are authority for the proposition that a property owner may make a reasonable use of the sidewalk or highway on which his property abuts, and the first of the said two cases (approved in the second) seems also to support the proposition that a door or gate swinging over a street for a part of its width is a reasonable use thereof by an abutting property owner. In Edwards v. Brayton, 25 R.I. 597, 57 A. 784, cited by defendant, the court was dealing with a case which arose from an injury caused by the opening of a gate which, when opened, swung partly over a sidewalk. The court said: "The gate, constructed as alleged, might remain forever closed; and, if it had remained so, the accident could not have occurred. Neither is it alleged that the gate was so constructed that it would inevitably become dangerous if carefully opened, and it is difficult to see how an ordinary gate of the height here stated could have been so constructed. If such a gate as is described were opened slowly and carefully, the visible motion would furnish sufficient notice to passersby; and if opened violently, as alleged, the violent opening, not the neglect to notify of the capacity to be opened, would be the proximate cause of any injury which might ensue. The case on this point is governed by Mahogany v. Ward, 16 R.I. 479, 17 A. 860, 27 Am.St.Rep. 753. See, also, McGough v. Bates, 21 R.I. 213, 42 A. 873; Afflick v. Bates, 21 R.I. 281, 43 A. 539, 79 Am.St.Rep. 801." The gate involved in that case was eight feet high and built in a solid board fence of that height. There was thus presented a situation almost identical with that of a door swinging outward from the wall of a building binding on a street, as at bar. Small gates in fences of open construction and moderate height may or may not be subject to a different classification from that which in our opinion must be made with reference to gates in high board fences of close construction and doors in buildings. The problem as to small gates can be solved when it arises. But with deference to the distinguished tribunals responsible for the above holdings we are not persuaded thereby.

We recognize and adhere to the principle already adverted to that the owner of property abutting a highway may make use thereof which is not consistent with the unimpeded use of the highway at all times by travelers whether on foot or in vehicle. Such use, however, must be reasonable, and above everything else, it must not involve a situation which savors of the characteristics of a trap that is, there must not be employed any contrivance or instrumentality which may, in either a latent or an operating state, take by surprise and unawares a person using the highway and injure him. An instrumentality which in its normal operation may inflict serious injury on a pedestrian howsoever carefully he may be moving along the street is inherently dangerous and constitutes a menace to all persons using such public way. It is a public nuisance. The employment of such instrumentality is violative of fundamental principles of personal and property rights. It ignores the former and exaggerates the latter. What possible conception of property rights can justify a property owner in maintaining at the entrance of his building binding on a public street a door so hung on hinges that it must swing out when opened, and which may at any instant, at the hands of an innocent user, be pushed into the face of a passing pedestrian? It may mar for life the countenance of a beautiful girl; it may cripple a little child; or it may hurl to the hard surface of the pavement an aged man and inflict grievous injury, as in this case. The law will not permit an owner of such instrumentality to stand free of responsibility for injury caused to another by such instrumentality, if the latter was free of negligence. Many decisions and texts sustain the principles underlying these statements. In the Irish Law Reports (1902, 1 I. R. 14) we find a case (Atty. Gen'l. v. Mayo County Council et al.) which involved a proceeding for the removal of a little hut which some kind-hearted and well-meaning persons, with permission of the Mayo County Council, had erected for two very poor people upon a piece of waste ground on an unused portion of a...