Parsons v. Roane County Court
| Decision Date | 05 December 1922 |
| Docket Number | 4478. |
| Citation | 115 S.E. 473,92 W.Va. 490 |
| Parties | PARSONS v. ROANE COUNTY COURT. |
| Court | West Virginia Supreme Court |
Submitted November 21, 1922.
Syllabus by the Court.
Under section 53, c. 43, Code 1906, a county court was made liable in terms for any injury sustained by a person by reason of a public road or bridge in its county being out of repair, except, if the place where the injury occurred were inside an incorporated city, town, or village which by its charter was required to keep its public ways in repair then the primary liability was fixed on the city, town, or village.
A statute should not be construed so as to lead to absurdity if such construction can be avoided.
Section 49, c. 52, Acts 1909 (Code 1913, c. 43, § 56a [sec. 1815]) section 53, c. 43, Code 1906, does not in terms make a county court liable for an injury sustained by a person by reason of a public road or bridge being out of repair, if the place where the injury was sustained is outside an incorporated city, town, or village, but to exempt a county court from such liability would be absurd, and would be in conflict with the general principles of law theretofore enacted by the Legislature upon the subject; hence the amendment cannot be held to exclude a county court from such liability, though the injury occurred on a public bridge outside an incorporated city, town, or village.
When a statute has been construed by this court, and it is thereafter re-enacted by the Legislature in the same or substantially the same terms, there is a presumption that the Legislature was familiar with the construction put upon it, and had that in mind when the statute was re-enacted.
Under section 53, c. 43, Code 1906, county courts were liable to any person who was injured by reason of a bridge in the county being out of repair, where the bridge was outside an incorporated city, town, or village. In 1909 this section was amended, chapter 52, § 49, Acts 1909 (Code 1913, c. 43, § 56a [[sec. 1815]), but the amendment does not in terms make county courts liable for such injuries. Subsequently this court, without noting the amendment, held county courts liable thereunder as if no such amendment had been made. Chapter 66, § 153, Acts 1917 (Code Supp. 1918, c. 43, § 153 [sec. 1940--153]), re-enacted the 1909 statute. By such re-enactment the Legislature adopted the construction put upon it by this court; therefore under it a county court is liable for such injury, though the bridge is outside an incorporated city, town, or village.
When a public bridge is being repaired by a county court, and it is closed to vehicles and animals by placing barriers at each end, sufficiently high to enable footmen to stoop under the barriers and use the bridge, and footmen are permitted to so use the bridge, and no notices are posted as required by law, warning the public that the bridge is closed, such bridge is not lawfully closed to public travel by footmen, and the liability of the county court to a footman for an injury received by him by reason of the bridge being out of repair is not suspended by reason of the making of repairs to the bridge or the erection of such insufficient barriers thereon.
A verdict for $475 in an action for personal injury sustained by reason of a public bridge being out of repair, whereby plaintiff's arm was permanently injured, will not be set aside because of inadequacy, where no pecuniary loss is shown.
Error to Circuit Court, Roane County.
Action by Forest Earl Parsons against the County Court of Roane County. There was a conditional verdict for plaintiff on defendant's demurrer to the evidence. The plaintiff moved to set aside the verdict as inadequate, which the court overruled, and thereupon sustained defendant's demurrer and dismissed the action. Plaintiff brings error. Reversed, and judgment on the verdict.
S. P. Bell, of Spencer, for plaintiff in error.
John W. Lance and Harper & Baker, all of Spencer, for defendant in error.
Plaintiff, a boy 9 years of age, in an action for personal injuries received by falling through a public bridge while it was undergoing repairs, obtained a conditional verdict for $475 on defendant's demurrer to the evidence. He made a motion to set aside the verdict because it was inadequate. This motion the court overruled. Thereupon the court sustained defendant's demurrer and dismissed the action. Plaintiff prosecutes the writ of error.
Before considering the assignment of error it is necessary to review the facts. On August 25, 1919, defendant was repairing a certain public bridge, part of the Glenville and Spencer road, which bridge spans Spring creek, near to, but outside, the town of Spencer. Defendant had put up a barrier across each end of the bridge, so as to prevent vehicles and animals from crossing the bridge, but the barriers were sufficiently high that footmen, by stooping, could and did go under them and pass over the bridge while the repairs were being made. A number of footmen were so using the bridge the day the accident occurred. The bridge is 197 feet long. The day of the accident, about midway of the bridge, the workmen had taken up a section of the flooring from 12 to 16 feet in length and extending across the width of the bridge, leaving exposed in the space from which the flooring had been taken the beams, which were 3 inches thick, placed 18 inches apart, and running lengthwise of the bridge. Plaintiff, in company with his sister, Eunice Parsons, a girl about 13, and Dan Tanner, a boy about 14, years of age, was crossing the bridge, carrying a basket of produce for market in Spencer. While walking on one of these beams, holding his basket with one hand and the bridge railing with the other, some workmen dropped a heavy piece of timber on the bridge, jarring loose his hold on the railing, and he fell through the open space to the ground, about 20 feet below, sustaining a broken arm and other injuries. The injury to the arm is permanent. He had approached the bridge from what is known as the "Calhoun" end. About 132 feet east of that end there was a path which led from the road down a grade to a temporary crossing over Spring creek. This temporary crossing consisted of two planks provided for persons desiring to cross the creek while the bridge was being repaired. Whether the plaintiff knew of this path or the temporary crossing is not disclosed.
The defense relies upon three grounds: (1) That under the statute county courts are not liable to any person who sustains an injury to his person or property by reason of a public road being out of repair, where the place of injury on such public road is outside an incorporated city, town, or village. (2) That at the time of the injury in this case the bridge was not open for public travel, and the statutory liability, if any, was suspended during the time the bridge was closed for necessary repairs. (3) That plaintiff was guilty of contributory negligence.
Referring to the first or main ground, our attention is directed to the law making county courts, cities, towns, and villages liable for such injuries as it stood prior to the enactment of section 49, chapter 52, Acts of the Legislature of 1909 (Code 1913, c. 43, § 56a [sec. 1815]), and to the changes made by that statute. The statute originally was:
Chapter 43, § 53, Code 1906.
The statute was amended in 1909 (section 49, chapter 52) so as to read:
"Any person who sustains an injury to his person or property by reason of a public road, bridge, street, sidewalk or alley in any incorporated city, town or village being out of repair, may recover all damages sustained by him by reason of such injury," etc.,
It will be observed that the words in the original statute, " in a county, or by reason of a public road bridge," have been dropped from the statute of 1909. The original statute in terms made county courts liable for injuries due to roads or bridges being out of repair where the road or bridge was in a county; but, if the road or bridge where the injury was sustained was in a city, town, or village, which by its charter was required to keep it in repair, then the primary liability was fixed on the city, town, or village. Why this change was made we do not know. The omitted line may have been...
To continue reading
Request your trial