Morris v. City of Wheeling, s. 10605

• Decision Date: 15 June 1954
• Docket Number: 10636,Nos. 10605,s. 10605
• Citation: 140 W.Va. 78,82 S.E.2d 536
• Court: West Virginia Supreme Court
• Parties: MORRIS, v. CITY OF WHEELING et al. (two cases).

Page 536

82 S.E.2d 536

140 W.Va. 78

MORRIS, v. CITY OF WHEELING et al. (two cases).

Nos. 10605, 10636.

Supreme Court of Appeals of West Virginia.

Submitted April 27, 1954.

Decided June 15, 1954.

Syllabus by the Court.

1. The cases of Boyland v. City of Parkersburg, 78 W.Va. 749 , and Rich v. Rosenshine, 131 W.Va. 30 , distinguished.

2. The liability of a municipal corporation, under Section 17, Article 10, Chapter 40, Acts of the Legislature, First Extraordinary Session, 1933, for alleged injuries caused by one of its sidewalks being out of repair is absolute, and is not based upon the negligence of the municipality.

3. 'The violation of an ordinance is not negligence as a matter of law, but is prima facie actionable negligence when it is the proximate cause of an injury.' Pt. 1 Syl., Moore, Adm'r v. Skyline Cab, Inc., 134 W.Va. 121 .

4. 'A municipal corporation is not an insurer against accidents upon streets and sidewalks. Nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient if the streets are in a reasonable safe condition for travel in the ordinary modes, with ordinary care, by day or night; and whether so or not is a practical question to be determined in each case by its particular circumstances.' Pt. 4 Syl., Yeager v. City of Bluefield, 40 W.Va. 484 .

5. 'A judgment entered by a trial court on a verdict based on conflicting oral evidence, after a motion to set aside the verdict and award a new trial has been made and overruled, may, on writ of error, be reversed and a new trial awarded, when, in the judgment of the appellate court, the verdict was plainly against the clear preponderance of the evidence.' Burgess v. Gilchrist, 123 W.Va. 727, Pt. 3 Syl. .

6. A prima facie case of actionable negligence is that state of facts which will support a jury finding that the defendant was guilty of negligence which was the proximate cause of plaintiff's injuries, that is, it is a case that has proceeded upon sufficient proof to the stage where it must be submitted to a jury and not decided against the plaintiff as a matter of law.

7. In an action at law instituted by a pedestrian alleged to have been injured while travelling along a public sidewalk of a municipal corporation, based upon an alleged violation of an ordinance of the municipal corporation, requiring the removal of snow and ice from public sidewalks by those occupying property abutting thereon, a verdict of the jury in favor of the defendant, in the absence of a clear preponderance of the evidence to the contrary or errors of law, will not be set aside by this Court on writ of error.

George G. Bailey, Charles P. Mead, Wheeling, for plaintiff in error, City of Wheeling.

Thomas P. O'Brien, W. F. Keefer, Wheeling, for plaintiff in error, Fannie Morris.

O'Brien & O'Brien, Wheeling, for defendants in error, Louis Yahn and William Yahn, d/b/a Yahn Bros. Pure Oil Service.

RILEY, Judge.

Fannie Morris instituted in the Circuit Court of Ohio County this action of trespass on the case against the City of Wheeling, a municipal corporation, and Louis Yahn and William Yahn, doing business as Yahn Brothers Pure Oil Service, to recover damages for personal injuries alleged to have been incurred by the plaintiff by reason of the sidewalk of a public street of the City of Wheeling, that is Sixteenth Street, upon which property leased by the individual defendants abuts, being out of repair within the meaning of Section 17, Article 10, Chapter 40, Acts of the Legislature, First Extraordinary Session, 1933 (Michie's West Virginia Code, Anno., 1949, Chapter 17, Article 10, Section 17), and against the individual defendants, Louis Yahn and William Yahn, doing business as Yahn Brothers Pure Oil Service, alleged to have been incurred by reason of the defendants' negligence in failing to remove snow and ice from the sidewalk on Sixteenth Street abutting the property leased by the individual defendants in violation of 'An Ordinance of the council of the city of Wheeling, amending and reenacting sections 3 and 4 of article 1 of chapter 31 of the Code of the city of Wheeling, 1949.' To a judgment in plaintiff's favor and against the defendant, the City of Wheeling, a municipal corporation, in the amount of $2,000, and of nil capiat per breve in favor of the defendants, Louis Yahn and William Yahn, doing business as Yahn Brothers Pure Oil Service, and against the plaintiff, Fannie Morris, the defendant, the City of Wheeling, and the plaintiff, Fannie Morris, prosecute separate writs of error to this Court.

For purposes of convenience the City of Wheeling will be hereinafter referred to as 'city of Wheeling', and the defendants, Louis and William Yahn, will be referred to as 'Yahn Brothers'.

The pertinent parts of the ordinance of the city of Wheeling, heretofore referred to, upon which plaintiff seeks to assert liability against Yahn Brothers, which was introduced in evidence and is entitled 'An Ordinance of the council of the city of Wheeling amending and reenacting sections 3 and 4 of article 1 of chapter 31 of the Code of the City of Wheeling 1949', read:

'Section 3. Removal of know from sidewalks

'The owner or occupant, or any person having the care of any building or lot of land bordering on any street or square within the city, where there is a sidewalk graded, or graded and paved, shall, within a reasonable time following any snow fall, cause the same to be removed therefrom. The provisions of this section shall apply to the falling of snow or ice from any building. The provisions relating to computation of time, as set forth in section 6 of chapter 1 of this Code, shall not apply to section 3 as to the removal of snow from sidewalks.

'Section 4. Removal of ice from sidewalks; sanding

'Whenever the sidewalk or part thereof adjoining any building or lot of land on any street shall be encumbered with ice, it shall be the duty of the owner or occupant, or any person having the care of such building or lot, to cause such sidewalk to be made safe and convenient by removing the ice therefrom or by covering the same with sand or some other suitable substance within a reasonable time after said ice accumulates on such sidewalk or part thereof.

'The provisions relating to computation of time, as set forth in section 6 of chapter 1 of this Code, shall not apply to section 4 as to the removal of ice from sidewalks or to the sanding of icy sidewalks.'

The plaintiff, Fannie Morris, slipped and fell on the sidewalk in front of the gas filling station located on the north side of Sixteenth Street between Chapline and Market Streets in the city of Wheeling, operated by the defendants, Yahn Brothers, doing business as Yahn Brothers Pure Oil Service, about 8:30 on the night of December 17, 1951. The plaintiff was painfully and seriously injured by slipping on ice which had accumulated on the sidewalk of Sixteenth Street, in the city of Wheeling, adjacent to the property occupied under least by the defendants, Yahn Brothers. At the time plaintiff was injured she was travelling on foot from the place of her employment in a part of Wheeling known as 'East Wheeling' from east to west on the north side of Sixteenth Street in the city of Wheeling, for the purpose of boarding a bus, which would carry her to her home in the vicinity of Boggs Run in Marshall County, in or near the city of Benwood. At the place where plaintiff slipped and fell the sidewalk sloped sharply from the property line of the premises leased by the defendants, Yahn Brothers, to Sixteenth Street proper in a southerly direction. From the property line of the street proper the slope of the sidewalk was somewhat over one foot in ten, while other sidewalks over which plaintiff travelled sloped in a lesser degree, that is, at least in some instances, three inches in ten feet. The sidewalk had a smooth surface of concrete, and was constructed so as to give ready access for automobiles into the gasoline station.

The property leased by Yahn Brothers consists of an automobile service station located on a tract of land measuring approximately 65 X 67 feet, exclusive of the sidewalks, and occupying a part of the corner lot, situated on the northwest corner of Chapline and Sixteenth Streets in the city of Wheeling, directly across Chapline Street from the City-County Building. The frontage of the property on Chapline Street along the curb was approximately seventy-five feet, and on Sixteenth Street along the curb the frontage was approximately eighty-one feet, so that the property was substantially rectangular in shape. The buildings, constituting the automobile service station, occupy about one-third to one-fourth of the area, and are located at the northwest corner of the lot, and along the adjacent northerly and westerly sides of the property. Except perhaps inside the building there was no sewer opening, catch basin, or other drain upon any part of the lot occupied and leased by Yahn Brothers, so that water caused by rain or melting snow, falling or accumulating on the lot could not escape except by flowing over the sidewalks; and there is probative evidence to the effect that water accumulating on the service station lot would flow across the sidewalk adjacent to the filling station property on the south side and the southwest corner thereof. Snow and rain had been falling intermittently on December fourteenth, and, on the entire day of December fifteenth, the temperature was below freezing, the Fahrenheit reading on the thermometer at midnight on that day being 4~ below zero. On December fifteenth there were two inches of snow on the ground, and some snow fell on that day. On the following day, December sixteenth, the temperature rose from 3~ below zero at 8 o'clock in the morning to 20~ above zero at midnight, and throughout this period the snow remained on the ground. On December seventeenth, the day on which plaintiff was injured, the temperature was 1~...