Moore v. City Of Huntington

• Decision Date: 15 December 1888
• Citation: 31 W.Va. 842,8 S.E. 512
• Parties: Moore v. City of Huntington.
• Court: West Virginia Supreme Court

8 S.E. 512

(31 W.Va. 842)

Moore

v.City of Huntington.

Supreme Court of Appeals of West Virginia

December 15, 1888

1. Damages—Evidence—Harmless Error.

The plaintiff in this case testified that she was a widow and had six children. Meld, this testimony was immaterial and irrelevant to the issue, but, inasmuch as it appears that the damages found by the jury are not in excess of what was fully warranted by the legitimate evidence, this, under the special circumstances of this case, is not a reversible error.

2. Municipal Corporations—Defective Sidewalks—Latent Defects.

A person who uses a sidewalk or other highway, which his observation, prudently exercised, would inform him was dangerous, takes the risk of such injuries as may result to him by open and apparent defects, such as his observation ought to have detected and avoided; but if the injury does not result from these, but from another and latent defect, which no reasonable degree of prudence or care could detect, he will not be considered as taking the risk of injury from this latent defect. ¹

3. Same—Evidence—Question for Jury.

In an action against a city for injuries caused by a defective sidewalk, it appeared that the plaintiff knew that the sidewalk was out of repair and dangerous: and it also appeared that the injury to the plaintiff was not necessarily caused by the open and apparent defects in the sidewalk, or any want of due care on her part, but may have been caused by a latent defect, for which the city was responsible, and which the plaintiff could not have detected by any reasonable prudence or care. Held it was proper to submit the plaintiff's evidence showing these facts to the jury, and to refuse the motion of the defendant to strike out said evidence.

(Syllabus by the Court.)

Error to circuit court, Cabell county.

Simms & Enslow, for plaintiff in error. Doolittle & Bryan and Campbell & Donnella, for defendant in error.

Snyder, J. Trespass on the case, brought by S. E. Moore against the city of Huntington, in the circuit court of Cabell county, to recover damages for iujuries sustained by the plaintiff in consequence of a defective sidewalk within the corporate limits of the defendant, which it was its duty to keep in safe repair. The defendant demurred to the declaration, which demurrer the court overruled, and thereupon the defendant pleaded not guilty. The issue was tried by a jury, and a verdict returned in favor of the plaintiff for $1,050, on which the court entered judgment, after having overruled the motion of the defendant to set aside the verdict, and grant it a new trial. The defendant obtained this writ of error.

The defendant offered no evidence to the jury, and the plaintiff was introduced as a witness on her own behalf, and testified as follows: That she has for a number of years resided on the north side of Third avenue and corner of Twenty-Fourth street in the city of Huntington. That on the morning of November 8, 1886, she started, with a basket of kindling wood on her arm, to the Third-Avenue school-house, which is situated on the south side of said avenue, some distance west of her residence, to sweep and build a fire in said school-house, of which she was janitress, employed as such by the defendant at eight dollars per month. That in going to the school-house she passedout her yard gate; thence crossing a ditch on a plank to Third avenue, at the north end of a culvert built in and at right angles across the avenue; thence she crossed the avenue on the covering of said culvert to the sidewalk on the south side; thence, turning west, in the direction of the school-house, she stepped upon one of the planks leading from the culvert and constituting part of the sidewalk, when the plank suddenly broke at the end where it rested on said culvert, and she fell, striking her back about the shoulder-blade against the edge of the plank covering of the culvert, and her left side against the remaining plank, which was lying along-side and parallel with the plank on which she had stepped. That she became unconscious, and knew nothing for about one hour. When consciousness returned she was bleeding from the nose and mouth. That when she fell she felt something about her snap. Her fifth rib on left side was fractured, and the sixth one slightly injured; her left shoulder was hurt, and on account thereof she cannot yet raise her left hand to comb her hair. She suffers great pain in her left side and shoulder. Some nights she cannot lie down on account of smothering. That she never was sick before, except an occasional bilious spell. That since she was hurt she has never been rid of pain, or able to do any work, and has been taking medicine ever since. Had hemorrhages, and has them yet, —spitting blood. Has had tromatic pneumonia, and was in bed off and on till February 20, 1887, and in that time had typhoid fever, and became emaciated and debilitated. That the sidewalk was torn up some time in August, 1886, in order to put in the culvert; and the culvert was completed about the middle of September following. The said two planks were placed there when the culvert was completed, and were constantly used by the public from that time until plaintiff was hurt. That she had seen these planks down, and put them up several times for the school children. The planks were not nailed down. That she passed and repassed over them twice every day since the culvert was finished. Said planks were a part of the Third-Avenue sidewalk, and passed over by many persons, day and night. There was no sidewalk on the opposite or north side of the avenue from her residence to the school-house. In going over the culvert she was always careful, knowing the planks were not nailed. Before stepping on the plank she noticed that they were well drawn upon the culvert. That she spoke to the mayor of the city about the place three weeks before she was injured. That while the culvert was building she would sometimes pass down Third avenue. There was some water on the street part of the time, but the walking was good, and the street was in as good condition as it could be while the culvert was building. She could see the culvert from her house, and know all about it. That in making the culvert it was necessary to tear up the sidewalk, and it was six or eight weeks before it was permanently replaced. That several times she saw the planks down, and put them up, and others did the same. That the plank, when she stepped on it, broke, and did not slip off. That she could have gone down the wagon road to the railroad crossing, and thus avoided the bad sidewalk, without increasing the distance very much. There was much other evidence corroborating this testimony of the plaintiff. Other witnesses testified that the planks seemed sound, and were constantly used by the public; many persons passing over them day and night. After the plaintiff was hurt the pieces of plank were lying on the ground. One piece, six or eight inches long, was broken off, and it looked rotten. Another witness said it was decayed where it broke off. After this evidence and more of the same character had been offered by the plaintiff, she rested; and thereupon the defendant moved the court to strike out all the evidence of the plaintiff, because it was insufficient to maintain the issue on her part, and also because it showed that she was guilty of contributory negligence, which was the cause of the injury, which motion the court overruled. The defendant then asked the court for three written instructions, which will be hereafter noticed, and the court refusedthe instructions, after which the defendant asked the court to direct the jury to return with their general verdict answers to the following questions: "(1) Had the sidewalk, at the place the injury was said to have occurred, been torn up for the purpose of repairing and constructing a culvert across Third avenue? (2) Did she see and know the nature and character of the defective sidewalk before and at the time of the injury? (3) Could the plaintiff have easily avoided the obstruction or defective sidewalk where the injury occurred by walking down Third avenue to go to the school-house, —her destination? (4) Had the sidewalk across the culvert been repaired after the cul vert was completed and before the injury? (5) Did the plaintiff, Mrs. Moore, know before and at the time of the injury that the sidewalk across the cul-vert had not been repaired, and that it was in a dangerous condition?"—which directions the court gave. The plaintiff then requested the court to instruct the jury to also answer the following questions: "(1) Was the general public using the sidewalk in question at and before the time of the injury complained of? (2) Did the plaintiff know, before she went upon the said sidewalk, that others had been passing over said walk? (3) Did she exercise care and caution when she stepped upon the sidewalk? (4) Was the sidewalk at the place mentioned in the declaration merely out of repair and unsafe? (5) Were the planks composing the sidewalk apparently sound? (6)...