Martino v. Rotondi

• Decision Date: 19 September 1922
• Docket Number: (No. 4540.)
• Citation: 113 S.E. 760
• Parties: MARTINO. v. ROTONDI.
• Court: West Virginia Supreme Court

113 S.E. 760

MARTINO.

v.ROTONDI.

(No. 4540.)

Supreme Court of Appeals of West Virginia.

Sept. 19, 1922.

(Syllabus by the Court.)

Error to Circuit Court, Marshall County.

Suit by Charles Martino against Fraucesco Rotondi. From a judgment for defendant, plaintiff brings error. Affirmed.

Martin Brown, of Moundsville, for plaintiff in error.

James D. Parriott and D. B. Evans, both of Moundsville, for defendant in error.

RITZ, J. This suit was instituted to recover damages for the alleged wrongful death of plaintiff's decedent. The judgment below was in favor of the defendant, and the plaintiff prosecutes this writ of error.

There is no substantial controversy developed by the evidence as to any material fact involved in the case. The defendant was the owner of a house and lot situate on the east side of Marshall street, in the city of Benwood. The front of the defendant's lot was some four feet higher than the sidewalk abutting the same, and the elevation of the rear of the lot was still higher. In front of defendant's lot, as well as in front of the adjoining lots, there was constructed a retaining wall. In front of defendant's lot this wall was a little more than four feet in height. The face of the wall at its base was on the street line, but it slanted back so that the face of the top of the Wall was slightly back of the street line. The wall, it appears, was about 2 1/2 feet thick at the top. It appears also that the defendant's lot for some 2 or 3 feet back of the wall was practically level, and from that point sloped up to his house. Some little time before the accident, of which complaint is made, the defendant determined to build a porch on his house, and for this purpose purchased some lumber. This lumber consisted of four pieces 4 inches by 6 inches by 16 feet long, and some smaller pieces 2 by 4 inches, as well as some inch boards. The lumber was piled either on top of the wall or partly on top of the wall and on defendant's lot back of the wall. The four larger pieces were laid longitudinally with the front of the lot, two of them on the ground, and the other two on top of these. The smaller pieces of lumber were then thrown behind these four larger pieces. It is shown beyond question that this lumber would have remained in the position in which it was thus placed by the defendant indefinitely, unless interfered with by some animate agency. On the morning upon which the plaintiff's decedent was killed, it appears that there were several children, among them plaintiff's decedent, playing in the defendant's yard on this pile of lumber. Witnesses who observed them say that they were using parts of the smaller pieces as springboards by engaging them in some way with the larger pieces. While they were playing in this manner the ice wagon came along, and some of the children, including plaintiff's decedent, ran to the street for the apparent purpose of getting small pieces of ice from the ice man, and just at the time that plaintiff's decedent reached the sidewalk immediately in front of the lumber one of these large pieces rolled down from off the wall and crushed her to death. There can be no question from the evidence but that this piece of lumber was caused to fall by reason of the children disturbing it with their play on the pile of lumber. Upon this state of facts the court instructed the jury that if they believed that the piece of lumber which fell upon plaintiff's decedent was caused to fall by some outside independent agency, for which the defendant was not responsible, then he would not be liable in this case. This, of course, was in effect a peremptory instruction to find for the defendant, because the evidence did not. really leave open the question of what caused the lumber to fall. The only witness who knew anything about it testified that it was displaced by the children playing on it, and the testimony is conclusive that it could not have fallen unless there had been some interference from an outside agency. Does this instruction correctly propound the law? Plaintiff contends that it...