Hill v. Norton
| Citation | 82 S.E. 363,74 W.Va. 428 |
| Parties | HILL v. NORTON ET AL. |
| Decision Date | 26 May 1914 |
| Court | Supreme Court of West Virginia |
Rehearing Denied July 1, 1914.
Syllabus by the Court.
An erroneous ruling upon a demurrer to each of two counts in a declaration, one of which is insufficient, is not alone ground for reversal, if plaintiff's evidence was admissible under the good count and was sufficient to sustain the cause of action therein averred.
Permission by the municipality to construct and maintain a coal vault under and an opening thereto in a city pavement will be presumed from acquiescence and use continued for several years.
A lot owner who maintains a coal hole in a city pavement as an appurtenance, whether constructed by him or not, must exercise reasonable care in keeping it in a reasonably safe condition for use by the public as part of the sidewalk. Whatever the public safety reasonably requires is the measure of diligence to be exercised by him.
If he knows, or by the exercise of reasonable diligence would have known, the grating over a coal hole in the sidewalk in front of his property was defective, and failed to repair it, he is liable for an injury resulting therefrom to a pedestrian lawfully using the sidewalk.
He remains liable for injuries to a pedestrian resulting from a defective coal hole grating in a pavement, when appurtenant to the premises, whether occupied in whole or in part by tenants, if the defect therein existed at the date of the demise.
A grant of a lot abutting on a city street vests title to a coal vault under and an opening in a pavement, though in terms not expressly including either of them. Such title is, however subject to the easement of the public for street purposes.
A pedestrian is not guilty of contributory negligence solely because he steps on a coal hole grating in a public sidewalk.
At the expiration of a tenancy, whether with or without actual change of possession, a landlord may lawfully enter and make necessary repairs; and his neglect so to do renders him liable for injuries resulting from defects then existing in the premises demised.
Unless brought to its attention by special bills of exception, or upon a motion for a new trial, specifically stating, as grounds therefor, the admission or rejection of evidence this court will not consider the rulings of the trial court thereon.
The trial court properly ruled on the instructions requested by the parties hereto.
To sustain a finding in his favor, it is not essential there should be a distinct preponderance of evidence on behalf of the plaintiff. To have this effect, it is only necessary that the evidence, when considered in its entirety, reasonably justifies such verdict.
This court will not grant a new trial, where the evidence is voluminous and conflicting, unless palpably insufficient to sustain the verdict, or the amount clearly evinces partiality, prejudice, or passion on the part of the jury, or that they were misled by some mistaken view of the merits of the case.
Additional Syllabus by Editorial Staff.
As defined by lexicographers, "distinct" means "clear to the senses or mind;" "easily perceived or understood;" "plain;" "unmistakable."
Error to Circuit Court, Ohio County.
Action by Blanch Hill against S. P. and G. W. Norton, for personal injuries. Judgment for plaintiff, and defendants bring error. Affirmed.
John P. Arbenz, of Wheeling, for defendants in error.
James W. Ewing and Hubbard & Hubbard, all of Wheeling, for plaintiff in error.
The injuries for which plaintiff sued resulted from a fall into a coal hole in the pavement adjacent to the lot and building thereon owned by defendants, who are now plaintiffs in error. The cover slipped or tilted when plaintiff stepped on it; one of her legs suddenly dropping into the opening, her body falling heavily across the upper edge of the circular iron grating.
In support of their demurrer to each of the two counts, defendants argue the declaration is insufficient, because the averments of the first are in part stated in the disjunctive, and both charge defendants "as insurers" of the safety of pedestrians on the pavement in front of their property. From the discussion of other questions arising on this review, and the conclusion reached thereon, will fully appear our reasons for holding the second objection untenable. As to the first, even if deemed sufficient to invalidate the first count because uncertain, and therefore violative of the strict rules of pleading, yet if the second count is sufficient, as we find it to be, and the evidence sustains the cause of action therein averred, such defect does not of itself warrant a reversal. Bank v. Evans, 9 W. Va. 373; Stolle v. Insurance Co., 10 W.Va. 546, 27 Am.Rep. 593; Haigh v. Association, 19 W. Va 793; Hood v. Bloch, 29 W.Va. 224, 11 S.E. 910; Cedar Works v. Dalea, 109 Va. 333, 64 S.E. 41; Johnson v. Commonwealth, 102 Va. 927, 46 S.E. 789. That it was thus admissible and sufficient appears from the facts detailed and the conclusion reached on this review. As applicable here, the rule announced in the cases cited is that notwithstanding the error, if indeed it be such, committed by the trial court in its ruling on the demurrer, still if the evidence certified was admissible under the second count, and sufficient to warrant the verdict complained of, this court will not, for that reason alone, reverse the judgment below.
When and by whom the coal vault and opening were first made, or whether made with or without municipal license, the record affords no means of ascertaining. But the record warrants the conclusion that they were constructed conjointly with the basement and superstructure, a brick building at least two and perhaps more stories in height, and have since been maintained as appurtenances to the building. It also warrants the further conclusion that the building is an old one. The legal, but rebuttable, presumption is that the coal vault and opening were first constructed by and with the consent of the municipality. Hart v. McKenna, 106 A.D. 219, 94 N.Y.S. 216; Korte v. Trust Co., 54 Minn. 530, 56 N.W. 246; 1 McAdam on Landl. & Ten. 1632.
"Permission to construct the vault may be inferred from acquiescence in its maintenance for many years." 3 Dillon on Mun. Corp. § 1180.
The evidence justifies the conclusion that at no time was the grating over the coal hole securely fastened by rod or chain, as required by municipal ordinance passed in 1881, or that, if thus or otherwise fastened, the appliances provided had long since ceased to be effective for that purpose. That plaintiff stepped on the cover and was injured, no one denies. Nor is there any proof that she did not exercise reasonable care for her own safety. Defendants, at the time of their purchase, knew of the existence of the opening in the pavement and of the grating covering it, although George Norton says:
"I knew in a general way there was a vault there; but we never used it, and it never occurred to me anything about it."
But plaintiff's husband, who saw the grating after the accident, testifies:
But the extent of plaintiff's injury, and whether temporary or permanent, are questions as to which the testimony is voluminous and conflicting.
Defendants deny liability, first, on the theory that title to the coal area, and the means of access thereto from the sidewalk, did not vest in them by virtue of their deed. That they did pass thereunder, as appurtenances to the building, subject to the easement for street purposes, whether in terms expressly granted or not, is abundantly sustained by the authorities. Clifton v. Weston, 54 W.Va. 250, 46 S.E. 233; Stewart v. Railroad Co., 38 W.Va. 438, 18 S.E. 604; Foley v. County Court, 54 W.Va. 16, 46 S.E. 246; Marbury v. Jones, 112 Va. 389, 71 S.E. 1124; 3 Dillon on Mun. Corp. §§ 1180, 1183; Parish v. Baird, 160 N.Y. 302, 54 N.E. 724. Defendants also deny liability in any event, and contend that, if any liability exists under the circumstances of this case, it devolved upon Helmbright, who, as tenant, occupied part of the premises at the time they acquired title thereto, and thereafter, without change of possession, continued as their tenant at the date of the injury. These two grounds of defense may be considered conjointly.
It is true, when defendants purchased the property in January, 1907, Helmbright occupied the first floor and the basement. His tenancy, however, expired about one month thereafter, when he became their tenant of the same parts but not of the building in its entirety. He thus remained in possession at the date of the injury. In this connection, it may be observed, and the testimony shows, that the coal hole and opening had not been in use, at least for the purpose originally intended, for 20 years or more prior to the accident; and Helmbright did not use either of them at any time during his tenancy, which began in 1906. From that time, at least, to the date of the accident in 1909, it is fair to conclude from the testimony the grating was not securely fastened in the frame, although it does not appear any person except the plaintiff sustained injury thereby.
The authorities seem fully in accord upon the proposition that if at the date of the lease, or a renewal thereof, whether by the same or subsequent owners, the premises are out of repair or in a defective condition, whereby injury occurs to a third person, the owner is...
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