Phillips v. City Of Huntington

• Decision Date: 28 November 1891
• Court: West Virginia Supreme Court
• Parties: PhiLlips. v. CitY of Huntington.

14 S.E. 17

35 W.Va. 406

PhiLlips.

v.CitY of Huntington.

Supreme Court of Appeals of West Virginia.

Nov. 28, 1891.

Municipal Corporations—Defective Sidewalks —Action for Injuries—Negligence.

1. In an action for injuries received on a street or sidewalk of a city the plaintiff makes out a prima facie case when he proves that the authorities of such town or city have treated the place where the injury was received as a public street, by taking charge of it and regulating it as they do other streets, and that the accident resulted from a defective sidewalk, which was out of repair.

2. Where it is claimed by the defendant that the injury was caused by the contributory negligence of the plaintiff, and such negligence appears to the court to amount to negligence perse, or legal negligence, the court should hold that the plaintiff cannot recover; but where, in such an action as above described, it is doubtful from the evidence whether the defect was of thatplain and patent character which the plaintiff's observation, prudently exercised, would inform him was dangerous, or whether the defect was of that character which reasonable prudence and care could not detect at the time when the accident occurred, then the question becomes a mixed question of law and fact, appropriate for the decision of a jury, and the court will not ordinarily interfere with their verdict.

(Syllabus by the Court,.)

Error to circuit court, Cabell county.

Action by R. T. Phillips against the city of Huntington, for personal injuries. Judgment for plaintiff, and defendant brings error. Affirmed.

Campbell & Holt, for plaintiff in error.

Doolittle & Bryan and Gibson & Michie, for defendant in error.

Lucas, P. This was an action on the case, brought by the plaintiff against the city of Huntington for an injury received by the plaintiff by reason of a loose plank on Fourth avenue in West Huntington. The plaintiff, to maintain his action, introduced the charter of the city, which, as heretofore construed by this court, requires said city to keep its streets and sidewalks in repair, within the meaning of section 53 of chapter 43 of the Code. See Moore v. City of Huntington, 31 W. Va. 842, 8 S. E. Rep. 512. The plaintiff further introduced a properly certified order of the city by its common council, dated in 1886, directing the street commissioner to notify all lot-owners in West Huntington to put down a plank sidewalk, etc. He then proved by several witnesses, one of whom was the marshal of the city, that the sidewalk in question had been constructed under the order of the council previously introduced, and that the street commissioner of the city, since the date of said order, (1886,) had repaired this sidewalk, and the city had claimed and exercised jurisdiction over the same; that the city had elected its city marshal, a person who resided in West Huntington, east of and near the place of the accident. Plaintiff further proved "that the place of said injury to the plaintiff was in front of the Mcintosh property, is within the corporate limits of the city of Huntington, but witness was not along with surveyor when city was run off." With reference to the injury itself there was no other testimony than that of the plaintiff. During the progress of the trial one of the plaintiff's witnesses proved as follows: "That the city had always claimed and exercised jurisdiction in West Huntington at and near the place of said accident through its various officials; that said place is within the corporate limits of said city, and that the western boundary line of said city is a lane, below the Verlander property and west of the Mcintosh place; that his, (Mitchell's) lot and the Mcintosh are both out of the Sam'l W. Johnston farm, and, with other lots on the north side of said avenue, sold off of said farm by said Johnston prior to the year 1872, and before the Johnston farm was excluded from the city limits by an act of the legislature in 1872; that said Johnston farm is no pait of the Central Land Company's land; that all of said Johnston land was taken in and included in the corporate limits of the city of Huntington, but that he (Johnston) after having sold off a number of lots on the north side of said avenue, went to the legislature, and got the balance of the farm excluded.'" So much of said evidence as is in italics above is the subject of the appellant's second bill of exceptions, it being certified by the court that before the plaintiff had rested his case the defendant moved the court to strike out and exclude from the jury that portion aboveitalicized, which the court refused to do. Defendant's third bill of exceptions is founded upon a refusal of the court to grant an instruction requested by the defendant. The plaintiff offered two instructions, which were granted by the court, and the defendant makes them the subject of its fourth bill of exceptions. The instructions were as follows: "The court instructs the jury that our statute (chapter 43, § 53, Code W. Va.) imposes an absolute liability upon the defendant, the city of Huntington, for any injury sustained by the plaintiff by reason of the failure of the defendant to keep the sidewalk in the declaration mentioned in repair: provided, they are satisfied from the evidence in this case that the place of the alleged injury to the plaintiff was within the corporate limits of the defendant, and that such sidewalk was, at the time and place where the alleged injury occurred, controlled and treated by the defendant as a public sidewalk, and opened as such; and provided, further, that the plaintiff was not guilty of any negligence that contributed to such injury." "The court further instructs the jury that, if they find for the plaintiff, that then the plaintiff is entitled to recover all damages proved by him as caused by the alleged injury, and that in estimating his damages they will consider the evidence in relation to plaintiff's loss of time occasioned by his injury; also the evidence in relation to his pain and suffering resulting from such injury, and the evidence in relation to the extent and permanency of said injury." The defendant, to meet the issue on its part, introduced an act of the legislature, as follows: " An act for the relief of Samuel W. Johnston, passed Feb. 28, 1872. Be it enacted by the legislature of West Virginia that the farm of Samuel W. Johnston, on which he now resides, be, and the same is hereby, excluded from the corporate limits of the city of Huntington. " The defendant then proved by Foster Stewart, a member of the city council, and a resident of Cabell county for 40 years, that the Mcintosh property, and that portion of West Huntington through which Fourth avenue runs, and where the accident occurred, is all a part of the Samuel W. Johnston land, —was sold out of the same. The defendant then proved by H.C. Simms that he had been city solicitor for several years; that he did not know where the western boundary line is, and did not believe any one else does; that there has been a dispute since the passage of the above set out act of the legislature whether or not the portion of West Huntington where the injury occurred is within the corporate limits of said city of H'mt-ington. Defendant also asked for the fol-lowing instruction, which the court refused, and exception was reserved: "If the jury believe from the evidence in the case that the Samuel W. Johnston farm, on which he resided in 1872, was excluded from the corporate limits of the city of Huntington by an act, of the legislature of the state of West Virginia, passed on the 28ch day of February, 1872, and that the place where the accident complained of was on what was known as the 'S. W. Johnston Farm, ' referred to in said act, then the city is not liable to plaintiff for any injury happening to him by reason of a defective sidewalk on said farm, although the jury may believe that the said S. W. Johnston hud, prior to 28th February, 1872, sold and conveyed away to others that particular part of said farm where the alleged defective walk was located." The language, "the farm of Samuel W. Johnston, on which he now resides, " under said act of the legislature of 28th February, 1872, means "the entire farm as it formerly stood in the corporate limits of said city, as set out in the charter of said city." The case having been submitted to a jury, they found a verdict for the plaintiff, assessing his damages at $637.50. The defendant then moved to set aside the verdict as contrary to the law and the evidence, but the court refused, and gave judgment against it, which it has made the subject of an exception before this court.

The questions involved in this case for our consideration have been so frequently before the court that we ought to find no difficulty in reaching a conclusion in accordance with the principles heretofore firmly established, and to disturb which would be a dangerous precedent. The Code provides (chapter 43, §31) as follows: "Every county road, bridge, and landing, and every street and alley in an incorporated city, town, and village, heretofore established and opened pursuant to law, and which has not been lawfully discontinued or vacated, shall continue as such until properly discontinued; and every road, street, or alley used and occupied as a public road, street, or alley, shall in all courts and places be taken and deemed to be a public road, street, or alley, (as the case may be,) whenever the establishment thereof as such may come in question." In commenting on this section of the Code in the case of Yates v. Town of West Grafton, 33 W. Va. 508, 11 S. E. Rep. 8, this court held: "Under section 31 of chapter 43 of the Amended Code, which is the same as section 31 of chapter 14 of the Acts of 1881, when the owner permits the use of his land as a public road, street, or alley for a long time, such user will not now be presumed to be a mere license, but a dedication; and the acceptance of the...