Or. W. Douglass v. County Court Of Roane Co.

• Decision Date: 17 January 1922
• Citation: 90 W.Va. 47
• Parties: Or. W. Douglass, Adm'r. v. County Court of Roane Co.
• Court: West Virginia Supreme Court

90 W.Va. 47

Or. W. Douglass, Adm'r.

v.County Court of Roane Co.

Supreme Court of Appeals of West Virginia.

Submitted January 11, 1922.

Decided January 17, 1922.

1. Highways Construction, Maintenance and Repair a Governmental Function and County Not Liable for Personal Injuries from Negligence in Absence of Statute. The construction, maintenance and repair of public roads of a county, by its county court, are governmental functions; wherefore, for an injury inflicted upon a citizen, by the negligence of its agent, servant or employee, in the execution of such work, it is not liable, unless the act causing the injury was of such character as to impose liability under the terms and provisions of a statute. (p. 48).

2. Same Negligent Driving of County's Motor Truck Held Not to Make Road Unsafe or "Out of Repair" Within Statute so as to Render County Liable.

Negligent driving of a motor truck owned by a county court and used in such work, upon a county road, by one of its agents, servants or employees, in consequence of which a citizen traveling on such road is fatally injured, does not make the road unsafe for travel or "out of repair" within the meaning of sec. 154 of ch. 43 of the Code, and, in such case the county court is not liable in damages for the death of the persons so injured, under or by virtue of said statute. (P. 49).

Appeal from Circuit Court, Roane County.

Action by G. W. Douglass, as administrator, against the County Court of Roane County, for the wrongful death of plaintiff's intestate, and from the sustaining of a demurrer to plaintiff's declaration, the plaintiff appeals.

Affirmed.

Thos. P. Ryan and Hogg & Hogg, for appellant. John W. Lance and Harper & Raker, for appellee.

poffenbarger, president:

The decision certified in this case sustained a demurrer to a declaration setting up a claim for damages for wrongful death of the plaintiff's intestate, inflicted on a county road, by a motor truck owned by the defendant and operated by one of its servants.

The condition of the road at the point at which the decedent incurred his fatal injury seems to have been good. The declaration alleges that it was at least twenty feet wide and there is no suggestion that it was rough, uneven or otherwise defective. It may be inferred from certain allegations, that other portions of the road were undergoing repairs, but no connection between the injury and those portions is alleged. The injury occurred while the plaintiff's intestate was journeying from his home, on horseback, to the town of Spencer, and at a point about three-quarters of a mile outside of the limits of the town. There he met a gasoline motor truck owned and used by the defendant, in the construction and repair of its roads, coming up a grade in the road and running on the left or wrong side thereof. As it approached at a high rate of speed, the decedent, observing that his horse was taking fright, signaled the driver of the truck to stop it or reduce its speed, but the signal was ignored and the speed increased. Thoroughly frightened, the horse became unmanageable and threw its rider on the paved road, in front of the truck, by which he was run over and killed.

Conceding the ownership, maintenance and operation of the truck by the defendant, for governmental purposes and in governmental work, the construction, maintenance and repair of its public highways, liability is not claimed on the ground of mere negligence of the defendant's servant in the operation of the truck. Lack of liability on that ground is admitted, and it is clearly manifest that, under our decisions, there can be none. Brown's Adm'r v. Guyandotte, 34 W. Va. 299; Bartlett v. Clarksburg, 45 W. Va. 393; Shaw v. City of Charleston, 57 W. Va. 433; Mendel v. Wheeling, 28 W. Va. 233. The exceptional eases of Wigal v. City of Parkersburg, 74 W. Va. 25, Bitz v. Wheeling, 45 W. Va. 262, and Gibson v. Huntington, 38 W. Va. 177, are not relied upon in the argument, nor is there any effort to bring this case within the principles they announce. While some broad expressions used in them might include this case within their terms, we are of the opinion that no liability can be asserted on the mere ground of negligence in the operation of the truck. Allowance thereof would be against the overwhelming weight of authority in practically all jurisdictions. Richmond v. Long's Adm'r, 17 Graft. 375; Orme v. Bich- mond, 79 Va. 86; Matthews v. Vicksburg, 64 Miss. 777; Hill v. City of Boston, 122 Mass. 344; Dillon, Mun. Cor., 5th Ed., sees. 1656 to 1664, inclusive.

The theory of liability urged in argument is that the negligent act of the defendant's servant in the use of its truck on its road, is imputable to it, and had the legal effect of making the road unsafe for public travel, and, therefore, "Out of...