Holsberry v. City Of Elkins

Citation103 S.E. 271
Decision Date11 May 1920
Docket Number(No. 3926.)
CourtSupreme Court of West Virginia
PartiesHOLSBERRY et al. v. CITY OF ELKINS.

(Syllabus by the Court.)

Error to Circuit Court, Randolph County.

Action by Ruhalia Holsberry and others against the city of Elkins. Judgment for defendant, and plaintiffs bring error. Affirmed.

A. M. Cunningham and Samuel T. Spears, both of Elkins, for plaintiffs in error.

Arnold & Arnold, of Elkins, for defendant in error.

WILLIAMS, P. [1] The principal question, presented on this writ of error prosecuted by the plaintiff to a judgment for the defendant, the city of Elkins, in an action of trespass on the case for injury alleged to have been received on account of a sidewalk of the city being out of repair, causing plaintiff to slip and fall, is, Was the sidewalk out of repair within the meaning of section 154, c. 43, Code 1918 (Code Supp. 1918, c. 43, § 153 [sec. 1940—153]), giving a right of action to the party injured against an incorporated town or city? This is a practical question. Plaintiff was going to church about 7 o'clock in the evening, and slipped on a brick sidewalk, on Randolph avenue, and fell, causing the injury. She says she thinks she slipped on a raised place in the sidewalk, and the evidence is that, at the point where she fell, there is a swell or raise in the sidewalk, sloping gradually to the center for a distance of about two feet, which is 1 to 1 1/2 inches higher in the center than the other portions of the sidewalk, caused by the root of a maple tree that stood in the grassplot between the sidewalk and the curb, growing underneath the walk. It is insisted that this raise in the sidewalk, being made slippery by the snow and ice and the children skating or coasting over it, rendered it out of repair within the meaning of the statute. The principal assignment of error is the refusal of the court to give plaintiff's instruction No. 3, which squarely presented the question. It is as follows:

"The court instructs the jury that if they believe from the evidence in this case that at the point in the sidewalk where the plaintiff Ruhalia Holsberry slipped and fell the sidewalk was slick and slippery by reason of the snow having fallen thereon and the children coasting, skating, and sliding thereover, and that the said plaintiff, while exercising due care, slipped and fell because of said slippery condition caused by said coasting, skating, and sledding by chil dren over said sidewalk as aforesaid, then said slippery condition constituted said sidewalk out of repair as contemplated by the laws of this state, and the jury should find for the plaintiffs."

This instruction was properly refused. Plaintiff's injury occurred on the 7th day of February, and about an inch of snow had fallen that day, and the weather was cold, making the sidewalks generally slippery. This case is unlike the case of Boyland v. Parkers-burg, 78 W. Va. 749, 90 S. E. 347, cited and relied on by plaintiff's counsel. In that case the city was held liable because it had permitted the water falling on the roof of a house to be collected and cast upon the sidewalk by a downspout of a house. The water froze as it ran across the surface of the sidewalk, and formed a hump or ridge of ice upon which plaintiff, ignorant of the condition, slipped and fell and injured himself. There the city was negligent in permitting the water to be collected in a body and cast upon the street, and when the water froze it constituted a defect in the sidewalk. The present case is quite different. Here the city-was guilty of no breach of ministerial duty, unless suffering the slight raise in the sidewalk to exist and the children to skate or slide over it when covered with snow, thus making it more slippery than it would otherwise have been can be said to constitute such breach by causing the sidewalk to be out of repair. The effect of the statute is not to constitute a municipality an insurer against accidents, neither does it render it liable for an injury, unless the injury is caused by the obstruction of the street or its being out of repair, and by being "out of repair, " this court has frequently said, means not reasonably safe for travel by the ordinary modes by day or by night, which is a practical question. Wilson v. City of Wheeling, 19 W. Va. 323, 42 Am. Rep. 780. The principle there announced has been followed uniformly by this...

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18 cases
  • Rich v. Rosenshine
    • United States
    • West Virginia Supreme Court
    • 25 Noviembre 1947
    ...v. City of Charleston, 51 W. Va. 132, 41 S. E. 171; Chapman v. Milton, 31 W. Va. 384, 7 S. E. 22. In the case of Holsberry v. City of Elkins, 86 W. Va. 487, 103 S. E. 271, this Court held that an alleged defect consisting of a slightly raised portion of a public sidewalk of the city upon wh......
  • Burcham v. City of Mullens
    • United States
    • West Virginia Supreme Court
    • 4 Octubre 1954
    ...it was held that a projecting brick on an uneven pavement of a sidewalk did not render the sidewalk out of repair; Holsberry v. City of Elkins, 86 W.Va. 487, 103 S.E. 271, in which it was held that slippery ice over a slight slope raised by the trunk of a tree did not render a public thorou......
  • Hatten v. Mason Realty Co.
    • United States
    • West Virginia Supreme Court
    • 17 Marzo 1964
    ... ... 381] sewer line is constructed or installed within the city by its agents and employees, and paid for by the city; and where such construction or installation ... 152, 153; Shaw v. City of Charleston, 57 W.Va. 433, pt. 2 syl., 50 S.E. 527; Holsberry v. City of Elkins, 86 W.Va. 487, pt. 2 syl., 103 S.E. 271; Carder, Admr. v. City of Clarksburg, 100 ... ...
  • Jones v. City of Mannington
    • United States
    • West Virginia Supreme Court
    • 23 Junio 1964
    ...v. City of Clarksburg, 100 W.Va. 605, 131 S.E. 349; Douglass v. Roane County Court, 90 W.Va. 47, 110 S.E. 439; Holsberry v. City of Elkins, 86 W.Va. 487, 103 S.E. 271. In the light of the authorities to which we have referred, the Court holds that the evidence in this case fails to disclose......
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