Holsberry v. City Of Elkins
Citation | 103 S.E. 271 |
Decision Date | 11 May 1920 |
Docket Number | (No. 3926.) |
Court | Supreme Court of West Virginia |
Parties | HOLSBERRY 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:
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...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......
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