Michaelson v. City of Charleston

Decision Date10 June 1912
Citation75 S.E. 151,71 W.Va. 35
CourtWest Virginia Supreme Court

Submitted February 14, 1912.

Syllabus by the Court.

In an action for tort causing personal injury, it is not necessary that the declaration aver that the plaintiff was not chargeable with contributory negligence; it being matter of defense.

In an action against a city for personal injury caused by an obstruction of a sidewalk, it is not necessary that the declaration aver that it was the duty of the city to keep the sidewalk in good condition for public use and free of obstruction, as the law imposes that duty.

It is not necessary to allege matter of law in a pleading.

Mere use by the public of a sidewalk or street will not make it a street or sidewalk, so as to charge a municipal corporation with liability for damage arising from its defective condition or obstructions on it.

Error to Circuit Court, Kanawha County.

Action by Mary E. Michaelson against the City of Charleston. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Upshur Higginbotham, for plaintiff in error.

Frank C. Burdette, U.S. Albertson, and J. B. Menager, for defendant in error.


Mary E Michaelson sued the city of Charleston, and recovered judgment on a verdict for $800 damages for personal injury from a fall on Smith street while walking on a rainy, dark December night, owing to some brick lying on the sidewalk. A pile of brick, 20 or 30 feet long, 4 to 5 feet high, was on the edge of the pavement, leaving only a walking space of a yard between it and the brick wall of a house; and in this space, practically extending across it, in the middle of the pavement, were some dozen heavy brick in a pile, or scattered over the pavement, and the plaintiff in the dark stumbled over them, fell, and in trying to save herself clutched at the pile of brick, and shook more down from its top, falling on her arm. Whose brick, who piled them, is not shown.

The first assignment of error is that the court overruled the demurrer to the declaration. The brief of the city's counsel points out that the declaration does not set out fully enough that the plaintiff was not negligent. Do we have to say again, and give authority to show, that the declaration need not negative contributory negligence and that it is a matter of defense? Sheff v. Huntington, 16 W.Va. 307. We should not respond to this suggestion. The brief points out that the declaration does not set out fully enough the city's duty as to the street. The law imposes a duty on a city to keep safe sidewalks free of obstruction and it is not necessary to allege such duty, as it is never necessary in pleading to allege matter of law. Thomas v Electric Co., 54 W.Va. 395, 46 S.E. 217.

Another point made by counsel is that a witness, Dr. Mayer, who examined the injured wrist of the plaintiff, stated that it was discolored and swollen and she needed medical attention. There can be nothing in this point. Dr. Mayer was a physician, though then retired; but any one, though not a physician, could give such evidence.

The brief makes the point that Mrs. Michaelson did not avail herself of proper medical treatment in proper time. There can be nothing in this. The murderer cannot say that bad medical treatment contributed to death. To relieve from murder, the wound must be not mortal, and death must come from independent cause. Livingston's Case, 55 Va. 592; Clark's Case, 90 Va. 360, 18 S.E. 440; 2 Bishop, Crim. Law, § 638, 1 and 2. So with a tort-feasor. It can hardly be said that a city can say, when a person receives an injury from a defective street, that the person had not good medical aid, and thus exempt itself from liability. But there is no evidence to show that want of medical treatment caused or aggravated the injury. If there were, it is a jury matter. We need not have adverted to this feature of the case.

The only question of import arises on the evidence as to whether the city is liable...

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