Jones v. City of Mannington

• Decision Date: 23 June 1964
• Docket Number: No. 12256,12256
• Citation: 148 W.Va. 583,136 S.E.2d 882
• Court: West Virginia Supreme Court
• Parties: C. Paul JONES v. CITY OF MANNINGTON et al.

Page 882

136 S.E.2d 882

148 W.Va. 583

C. Paul JONES v. CITY OF MANNINGTON et al.

No. 12256.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1964.

Decided June 23, 1964.

Syllabus by the Court

1. The mere use by the public of a portion of private land near or adjacent to a city street cannot be deemed sufficient to constitute a dedication and acceptance thereof as a public street so as to create a basis of liability against the municipality under the provisions of Code, 1931, 17-10-17, as amended.

2. At common law, a municipal corporation is not liable for personal injuries or property damage caused by the negligence of its officers or agents in the discharge of, or omission to discharge, duties which are purely governmental in character. The maintenance of a public street by a municipality constitutes the performance of a governmental function.

3. Code, 1931, 17-10-17, as amended, creates a basis of liability which did not exist at common law.

4. While the liability of a municipality under Code, 1931, 17-10-17, as amended, is absolute in the sense that liability may exist in the absence of negligence chargeable to the municipality, still a cause of action within the meaning of the statute must be established before such liability accrues.

5. While a municipality may be held liable in damages under the provisions of Code, 1931, 17-10-17, as amended, in the absence of negligence chargeable to it, a plaintiff may, nevertheless, be barred from recovery of damages in such a case either on the basis of his contributory negligence or assumption of risk.

6. A municipal corporation cannot be held liable in damages, under the provisions of Code, 1931, 17-10-17, as amended, to one who has sustained injuries to his person or damage to his property as the result of a situation or condition existing on private land near or adjacent to one of the public streets of the municipality.

Furbee & Hardesty, Russell L. Furbee, Thomas J. Whyte, Fairmont, for appellant.

A. Blake Billingslea, Fairmont, for appellees.

CALHOUN, Judge:

This case involves an action instituted in the Circuit Court of Marion County by C. Paul Jones against the City of Mannington, a municipal corporation, and Thelma Shaw to recover damages for personal injuries to the plaintiff and damage to his automobile caused by the falling of a boulder or large stone from a rock precipice or cliff located on the property of Thelma Shaw near Pyles Avenue, one of the public streets of the city.

Upon a jury trial, the court, at the conclusion of all the testimony, directed a verdict in favor of Thelma Shaw, and overruled a motion for a directed verdict made on behalf of the municipality. The jury returned a verdict against the city for $2,875.00 and judgment was entered on that verdict. From an order entered on February 8, 1963, by which the trial court refused to set aside the verdict and to award the defendant a new trial, the city has been granted an appeal to this Court.

The complaint is somewhat vague concerning the alleged basis of liability of the defendants, though it refers to 'their concurrent negligence.' From the entire record, including particularly Plaintiff's Instruction No. 1 which was read to the jury, it is obvious that the alleged liability of the municipality is based on Code, 1931, 17-10-17, as amended, which imposes liability upon a municipality to any person who sustains an injury to his person or property by reason of any street, sidewalk or alley within such municipality being out of repair.

Assignments of error relied upon by the defendant in this Court may be summarized as follows: (1) The injuries to the plaintiff and his automobile were caused by his own negligence; (2) the trial court erred in authorizing the jury to return a verdict against the city on the basis of the statute previously referred to because the plaintiff did not prove that the city failed to perform any duty imposed upon it; (3) the evidence shows that the plaintiff is not entitled to recover because of his contributory negligence and assumption of risk; (4) the court refused to grant Defendant's Instruction No. 3-A which would have submitted the issue of contributory negligence to the jury; and (5) the court refused to grant Defendant's Instruction No. 7A which would have submitted to the jury the issue of assumption of risk.

The rock precipice or cliff is quite steep, almost perpendicular, from its base to its top. It is on and a part of a four-acre tract of land owned by Thelma Shaw. It is of natural origin. There is nothing to indicate that it has been altered in any respect by man. The evidence indicates that it is common knowledge in the community that, by operation of forces of nature, portions of the face of the cliff, consisting of stones of varying sizes, have broken loose and fallen intermittently for many years. The plaintiff, almost seventy years of age at the time of the trial, testified that he had known previously that large boulders fell from the cliff from time to time and that the consequent situation there was a dangerous one. At least since 1935, two signs have been maintained along the street, to warn persons approaching the area from both directions, bearing the following words: 'FALLING ROCKS TRAVEL AT YOUR OWN RISK.'

Pyles Avenue has a brick pavement fourteen feet in width. It was constructed as a public highway by the county in 1914, though in more recent years it has been maintained as a city street. The right of way is thirty feet in width. Apparently the base of the cliff is sixteen or seventeen feet from the right of way, or about thirty-one or thirty-two feet from the center of the paved portion of the street. That is to say, apparently it is approximately sixteen or seventeen feet from the edge of the right of way to the base of the cliff and that area constitutes a part of the four-acre tract of land owned by Thelma Shaw.

The stone which fell came from the face of the cliff, rather than from land at the top of and beyond the cliff. It appears without question, therefore, that the stone came from the property of Thelma Shaw. There is no contention that the stone came from within the right of way or from any other property owned by or under the control of the city. There is no contention that the falling of the stone was caused by the city street actually 'being out of repair.'

The basis of the plaintiff's contention appears to be that the city exercised control to some degree of the sixteen or seventeen-foot area between the right of way and the base of the cliff; that this area was used at least to some degree by the public; that consequently there devolved upon the city in these circumstances a duty to keep such area in proper repair; that it became 'out of repair' by the inaction of the city in failing to take precautions to prevent injury to persons and their property; and that such precautions could have been taken by discontinuing the use of Pyles Avenue and preventing travel thereon or by the erection of a wall or fence in front of the cliff and between it and the traveled portion of the street to protect the public from falling rocks.

The accident occurred during the early afternoon of November 20, 1961. At that time the plaintiff had driven to Pyles Avenue to have some work done on his automobile at Longstreth Garage, which is located directly across the street from the cliff. The plaintiff testified that another automobile was coming out of the entrance to the garage when he arrived; that he therefore backed his automobile toward the cliff and stopped while one-third or one-half of his automobile was still on the pavement; and that while his car was parked in that position, with its motor still running, the large boulder fell and struck the left rear of the car, driving at forward four to six feet. He testified that his car had been standing there less than a minute when it was struck by the boulder.

Frank Baker, aged seventy-nine, testified that he was in the garage at the time of the accident and that, when he came out of the garage after the accident, the plaintiff's 'car was in the middle of the street' and that the boulder also was on the paved portion of the street. This witness and the plaintiff were the only witnesses who testified in behalf of the plaintiff concerning the occurrence of the accident and the position of the plaintiff's automobile. All witnesses who testified in behalf of the defendants concerning the accident and the position of the car, three in number, testified that both the car and the boulder were completely off the pavement on the side toward the cliff after the accident. The testimony of these three defense witnesses indicates that the rear of the plaintiff's automobile was near the base of the cliff when it was struck by the boulder.

The testimony indicates that over a period of years prior to the accident the municipality, two or three times each year, has cleared out the fallen stones between the street and the base of the cliff with a road scraper or grader. There is no evidence that the city exercised control over the area in any other manner. Various people through the years have hauled away the stones which fell from the cliff and used them for fill purposes. J. L. Longstreth testified that he has tried to keep the area cleaned out and level to prevent danger to his garage from falling rocks. He testified that his purpose in doing so has been to keep the area cleared and level so falling stones will not roll in the direction of his place of business.

It appears from the testimony that it is necessary for motor vehicles to leave the pavement partially in order to pass each other; but, since the right of way is thirty feet in width, it is obvious that it is not necessary for a motor vehicle to leave the right of way, wholly or partially, merely to pass another vehicle approaching properly from the opposite direction. The record indicates that motor...