Parrish v. City of Huntington.
| Decision Date | 07 March 1905 |
| Citation | 57 W.Va. 286 |
| Court | West Virginia Supreme Court |
| Parties | Parrish v. City of Huntington. |
A municipal corporation is not an insurer against accidents upon streets or sidewalks. Nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient if the street is in a reasonably 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. Yeager v. City of Bluefield, 40 W. Va. 484, (p. 289.)
Where the evidence is without conflict, and it is clear and conclusive therefrom that a particular obstruction existed upon the sidewalk of the street of a municipal corporation, it is a question of law as to whether or not the obstruction was such as to render the sidewalk not in a reasonably safe condition, and thereby make the corporation liable in damages to a person injured by reason thereof, (p. 289,)
Municipal Corporations Defective Sidewalk.
Where a municipal corporation allows one of its sidewalks, which is about ten feet in width, to become obstructed by two stop boxes or water plugs placed thereon standing in the walk three feet from the side thereof next to the gutter, and projecting above the surface of the side-walk, one, two and three-fourth inches, and the other, one and three-fourth inches, and a few inches apart, and each box having a cap thereon, larger than the box itself, and slightly extending over it, it is such an obstruction as to render the walk not in a reasonably safe condition for the traveling public, and makes the corporation liable in damages to a person sustaining an injury by reason thereof, (p. 291.)
4 Municipal Corporations Allegations Necessary in Declaration Against.
In an action against a city or town to recover damages for injuries sustained by reason of an obstruction upon the sidewalk of one of its streets, it is essential to allege and prove that the street, at the time when, and the place where, the accident occurred, was treated and controlled by the municipality as a public street or thoroughfare, (p. 294.)
5. New Trial Deductions from Evidence Province of Jury
When some evidence has been given which tends to prove the fact in issue, or the evidence consists of circumstances and presumptions, a new trial will not be granted merely because the court, if upon the jury, would have given a different verdict, But to warrant a new trial in such case, the evidence must be plainly insufficient to support the verdict, (p. 29.1.)
(Municipal Corporations Accident on Streets Contributory Negligence of Child.
Where a boy five years old sustains an injury upon the sidewalk of a city or town, by reason of an obstruction thereon, and sues to recover damages therefor, he is not chargeable with failing to exercise that ordinary care which a reasonably prudent person would exercise under similar circumstances. Such boy cannot be guilty of contributory negligence, (p. 289)
7, Municipal Corporations Instructions No Conflict in Evidence.
Where a binding instruction is given for the plaintiff in an action against a municipal corporation for injuries sustained because of an obstruction on the sidewalk of its street, which omits to tell the jury that the plaintiff must prove that the street was controlled and treated by the authorities of the corporation as a public street or thoroughfare, it is not erroneous, when the evidence upon that point is without conflict, and where the fact is clearly established and not disputed by the evidence of the defendant: (p. 296.)
8. Instructions Misleading Not to be Given.
Instructions which do not correctly propound the law applicable to the case, and which are calculated to mislead the jury, should not be given, (p. 299.)
Error to Circuit Court, Cabell County. Action by Curtis Parrish against the City of Huntington. Judgment for plaintiff, and defendant brings error.
Affirmed.
Williams, Scott & Lovett, for plaintiff in error. McComas, Northcott & Perry and Wyatt & Hutchinson, for defendant in error.
The plaintiff, Curtis Parrish, by his next friend, brought an action in the circuit court of Cabell county against the City of Huntington, a municipal corporation, to recover damages for an injury sustained by him by reason of a defect or an obstruction in a sidewalk on one of the streets of the defendant. On the trial of the case, judgment was rendered for the plaintiff in the sum of $450.00, to which a writ of error and stcpersedeas was allowed.
On the 2nd day of June, 1900, the plaintiff, who was then about five years of age, while traveling upon the sidewalk on the south side of Fourth avenue, in the city of Huntington, fell and was injured. The sidewalk where the accident occurred was paved with brick, and nine feet, ten inches in width; and at a distance of three feet four inches from the edge of the sidewalk there were two stop boxes or water plugs, one extending two and three-quarter inches and the other one and threequarter inches above the surface of the walk. It was seven inches amd a half from center to center of the plugs, and each was covered with an iron cap, about four inches in diameter, and larger than the plug itself, leaving a space under the said caps and between the plugs large enough for the plaintiff to catch his foot.
The evidence as to the defect is clear, conclusive and without conflict, and, when this is so, it is a question of law for the court as to whether or not the particular defect or obstruction is such as to render the municipality liable for an injury directly resulting therefrom. But otherwise if the evidence is conflicting then it would be a question of fact, and should be submitted to the jury.
The decision of the court can have reference only to the case before it; and it is quite difficult, perhaps impossible, to formulate general principles that shall even control similar cases where the circumstances are not precisely the same.
It is insisted by counsel for the plaintiff in error that the obstruction was one for which the city would, in no event, be liable, and that one exercising ordinary care in using the sidewalk, even without notice of the existence of the water box, could not have received an injury from it. A city is not an insurer against accidents upon its streets and sidewalks. It is simply required to keep them in a reasonably safe condition for persons traveling in the usual modes by day and night, and using ordinary care. A man may stumble and fall anywhere-r-in a house or in a street; but, because he happens to fall in the street, it follows, by no means, that the city is responsible for the injury which he receives. There are slight inequalities in sidewalks, and other trifling defects and obstructions, against which one might possibly strike his foot and fall, but if the injury might be avoided by the use of such care and caution as every reasonably prudent person ought to exercise, for his own safety, the city will not be liable. This rule, however, is not without exception, and this case comes within the exception. The plaintiff, being about five years of age, is not chargeable with contributory negligence, and is not required to exercise that care and caution which reasonably prudent persons should exercise; and the question of contributory negligence not entering into this controversy, and the question of the exercise of due and reasonable care not being chargeable to the plaintiff, then was the obstruction such a one as to render the city liable? While it is true, as stated, that a municipal corporation is not an insurer against accidents on its streets and highways, yet it is charged with the exercise of due and reasonable care in keeping and maintaining' its streets so as to prevent injury to persons traveling over them. In this case two water plugs, one projecting two and three quarter inches, and the other one and three-quarter inches above the sidewalk, and near the center thereof, seems to be a very dangerous contrivance to be permitted to exist at a point where persons have the lawful right to go, and where pedestrians are daily traveling. In using the sidewalks of a city, a pedestrian has the right to presume that they are kept in a reasonably safe condition for travel.
In this case, suppose such a person as could be charged with contributory negligence should be passing over the sidewalk of the defendant, at the point where the accident occurred, and not knowing of the existing defect, should.stumble over it and be injured by reason thereof, the city would be liable, unless contributory negligence could be charged to him; that is, that he failed to exercise that ordinary care which a reasonably prudent person would have exercised under like circumstancs. But if contributory negligence could be attributed, then if such an injury should happen after night, and the injured party did not know of the existence of the defect, and could not have discovered it by the exercise of ordinary care such as a reasonably prudent person should have exercised, then there can be no doubt but that the city would be liable for the injury. In this case we have a plaintiff who is not chargeable with that care which is required to be exercised by reasonably prudent persons in fact, he cannot be chargeable with any degree of care, and not being so chargeable, the question is not involved in this case as to whether or not the injury could have been avoided by the exercise of ordinary care, but it depends upon the question as to whether or not the existing defect in the sidewalk was such as to render the street unsafe for travelers, by day or night, and if such a defect existed, although such a one as could have been avoided by the exercise of ordinary care by.an adult, still the mere...
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