Patton v. City of Grafton

• Decision Date: 28 May 1935
• Docket Number: 8106.
• Parties: PATTON v. CITY OF GRAFTON.
• Court: West Virginia Supreme Court

180 S.E. 267

116 W.Va. 311

PATTON v. CITY OF GRAFTON.

No. 8106.

Supreme Court of Appeals of West Virginia.

May 28, 1935

Submitted May 7, 1935.

Syllabus by the Court.

1. The Legislature has imposed on municipalities the absolute duty of maintaining their thoroughfares in a reasonably safe condition for travel in the ordinary modes.

2. A municipality is actionable for a personal injury produced by two concurring conditions of a thoroughfare, although liable for one of the conditions alone.

3. Use of a thoroughfare known to have attendant danger does not alone make a traveler negligent, but use wanting reasonable care.

4. Negligence is conduct unaccompanied by that degree of consideration attributable to the man of ordinary prudence under like circumstances.

5. Contributory negligence barring the plaintiff is conduct which the man of ordinary prudence, under like circumstances should reasonably anticipate would result in his own injury.

6. This criterion-the man of ordinary prudence-is neither an automaton nor an exceptional man, but an ordinary member of the community. Being an ordinary person, the law makes allowance for mere errors in his judgment and does not visualize him as exercising extraordinary care. Normality is the quintessence of this characterization.

Error to Circuit Court, Taylor County.

Action by Theodore Patton against the City of Grafton. Judgment for plaintiff, and defendant brings error.

Affirmed.

G. W Ford and Layne H. Ford, both of Grafton, for plaintiff in error.

W Merle Watkins, of Grafton, for defendant in error.

HATCHER Judge.

This is an action to recover doctors', nurses', hospital bills, and other damages to plaintiff occasioned by the fall of his wife off an unguarded public walkway into an open private cellar alongside the walkway. The accident occurred on Indian alley, which is one of defendant's public thoroughfares. From a judgment in favor of plaintiff for $800, defendant secured a writ of error.

Indian alley is on a hillside, is unpaved, and is regularly used by the public. The walkway in the alley partially consists of wooden steps which were erected two years before the accident. The cellar had been constructed prior to the steps and is about eight feet deep. Snow had fallen lightly the night before the accident, but on the day thereof had melted except in shaded areas. The plaintiff and his wife were proceeding down the alley (the most convenient route to their destination) in the daytime, when they noticed some unmelted snow on the steps. Mrs. Patton wore galoshes and was walking slowly. Because of the snow, she placed her hand on her husband's shoulder for ""protection" and then proceeded. Her precaution was unavailing, however, as she did slip on the snow, and fall into the cellar, receiving severe injuries. Both she and the plaintiff had made constant use of the steps, winter and summer, day and night, since their erection (without prior injury), and had full knowledge of the unguarded condition of the walkway.

The plaintiff takes the position that Indian alley was a public way commonly used by pedestrians; that Mrs. Patton was proceeding down the alley in a proper and prudent manner; that the city was negligent in not safeguarding the walkway; and that because of such negligence the city is liable for the results of her fall, citing Chapman v. Town of Milton, 31 W.Va. 384, 7 S.E. 22; Biggs v. City of Huntington, 32 W.Va. 55, 9 S.E. 51; Townley v. City of Huntington, 68 W.Va. 574, 576, 70 S.E. 368, 34 L.R.A. (N. S.) 118; and other so-called "excavation cases."

The defendant proved that besides Indian alley there were other available public ways down the same hillside, which were not shown to offer any danger to pedestrians; and that had Mr. and Mrs. Patton gone a few feet to one side ("abreast") of the steps they would have avoided proximity to the cellar. In connection with that proof, however, it appeared that the other public ways down the hill offered more circuitous routes to the Pattons than did Indian alley; and that the part of the alley abreast the steps was partially covered with snow, was "very rough," and was specifically considered by Mrs. Patton at the time as an unsafe place to walk. (No evidence to the contrary.) The defendant takes the position that while it may have been primarily negligent in not guarding the walkway at the cellar, the plaintiff and his wife were guilty of contributory negligence in using the way knowingly under the circumstances, citing Hesser v. Town of Grafton, 33 W.Va. 548, 11 S.E. 211; Van Pelt v. Town of Clarksburg, 42 W.Va. 218, 24 S.E. 878; Slaughter v. City of Huntington, 64 W.Va. 237, 61 S.E. 155, 16 L.R.A. (N. S.) 459; and other personal negligence cases.

The cases cited by the respective counsel herein are well defined, viewing accidents such as the one here from entirely different angles. There is also a host of other decisions by this court that might be termed "border line" decisions. It would be impractical to correlate those decisions with, or to differentiate them from, this case. We will follow the simpler plan of applying hereto the principles established by those decisions and by other authorities.

Primary negligence. An absolute duty is imposed by the Legislature on a municipality to maintain its public thoroughfares in a reasonably safe condition for travel in the ordinary modes. Griffin v. Town of Williamstown, 6 W. Va. 312; Stanton v. City of Parkersburg, 66 W.Va. 393, 66 S.E. 514. That duty is not performed "if either an obstruction, excavation, or hole be permitted by a town to exist, though not actually within one of the public streets of the town, yet so close to such a street as to produce danger to a traveler or passenger who is using such highway or sidewalk prudently." Biggs v. City of Huntington, supra, 32 W.Va. 55, page 64, 9 S.E. 51, 54. Accord: Townley v. City of Huntington, 68 W.Va. 574, 70 S.E. 368, 34 L.R.A. (N. S.) 118. It is not incumbent on plaintiff to show that the defendant had actual knowledge of the unguarded condition of the walkway beside the cellar. That condition had existed at the time the walkway was constructed and for so long a period afterwards (two years at least) that the defendant should have known of it in the exercise of ordinary care, and is therefore chargeable with notice. City of Linton v. Jones, 75 Ind.App. 320, 130 N.E. 541; City of Cushing v. Bowdlear, 74 Okl. 138, 177 P. 561. We are mindful that a municipality is not an insurer of its public ways against accidents, particularly those caused by slips on mud or snow-not unreasonably accumulated. Yeager v. City of Bluefield, 40 W.Va. 484, 21 S.E. 752; Van Pelt v. Town of Clarksburg, supra; McQuillin, Municipal Corporations (2d Ed.) § 2978; Dillon, Id. (5th Ed.) § 1697. But it is also the law that "the municipality is liable where the concurring causes are an actionable defect in the street and the slippery condition of the way-for the latter of which alone, the municipality is not liable." McQuillin, supra, § 3041. Accord: Blankenship v. City of Williamson, 101 W.Va. 199, 132 S.E. 492; Burrell v. City of Greenville, 133 Mich. 235, 94 N.W. 732; Lehmann v. City of Brooklyn, 30 A.D. 305, 51 N.Y.S. 524; Smith v. City of Yankton, 23 S.D. 352, 121 N.W. 848; 43 C.J., subject, Municipal Corporations, § 1840. Accordingly, the primary negligence of the defendant is clearly established as a matter of law.

Contributory negligence. When the facts are undisputed and should permit of but one reasonable inference, as herein, the question of contributory negligence is one of law for the court. Fields v. City of Spencer, 111 W.Va. 355, 161 S.E. 613; Higginbotham v. Kearse, 111 W.Va. 264, 265, 266, 161 S.E. 37, 77 A.L.R. 1110; Shriver v. Marion County Court, 66 W.Va. 685, 66 S.E. 1062, 26 L.R.A. (N. S.) 377; Snoddy v. City of Huntington, 37 W.Va. 111, 16 S.E. 442; Hesser v. Town of Grafton, supra.

(1) A traveler having a choice of two reasonably convenient ways-one dangerous and one not-may assume the risk of injury if he takes the dangerous way. Shriver v. Marion County Court, supra. The snow on the steps made the risk of the open cellar imminent. The Pattons did not know of the unmelted snow until they came to the steps. So, the evidence presents no case of deliberate choice between a dangerous and a safe route. As was said in Boyland v. City of Parkersburg, 78 W.Va. 749, 757, 90 S.E. 347, 351, they were "not required to forego the sidewalk and seek a different route under the circumstances." "Pedestrians have a right to walk on sidewalks in the most convenient route to reach their destination, and, while they cannot recklessly place themselves in danger of accident, they need not foresake such walks merely because there may be some danger in passing over them." Smith v. City of Yankton, supra. The uncontradicted evidence that the alley abreast the steps was rough, snow-covered, and considered unsafe (by Mrs. Patton) relieves the Pattons of any imputation of negligence for not taking that course. "As the alternative route becomes less convenient and more circuitous, and particularly when it itself is dangerous, the plaintiff may without negligence use a highway in a proportionately serious state of disrepair." Restatement, Torts, § 473b.

(2) Use of a highway known to have attendant danger does not alone make a traveler negligent, but use wanting reasonable care. The opinion in Slaughter v. City of Huntington, supra, 64 W.Va. 237, 240, 61 S.E. 155, 16 L.R.A. (N. S.) 459 attributes a contrary doctrine to the Hesser and the Van Pelt Cases, but that was inadvertent. In the Hesser Case, the plaintiff attempted to use a street knowing it contained obstructions, in the nighttime, without light of any kind. In the...