Pollock v. Wheeling Traction Co.
| Decision Date | 15 April 1919 |
| Docket Number | 3636. |
| Parties | POLLOCK v. WHEELING TRACTION CO. |
| Court | West Virginia Supreme Court |
Submitted April 8, 1919.
Rehearing Denied May 29, 1919.
Syllabus by the Court.
Where the powers given a municipality or other public authority by legislative action are permissive only and the law imposes no positive duty or obligation to exercise those rights, neither such public body nor one to whom by contract or ordinance such right or power may be delegated can be rendered liable to a third person for damages resulting from the failure to perform the contract or exercise the power granted.
But where the duty to exercise such power by a municipality or delegated authority is imposed by some positive law or ordinance in the interest of the public or some particular class of persons, as that of keeping public streets or roads in repair, such public authority or delegated person or corporation is liable in damages to anyone injured by a breach of the duty and obligation so imposed independently of the contract between the immediate parties thereto.
An ordinance of a county court or other municipality, made by legislative authority, granting on conditions to a railroad company the use of a public road or street, has the force of positive law, and for the breach of the conditions of the grant a railway company accepting and using the franchise may be rendered liable to any person injured by non-performance of the conditions and obligations so imposed.
If a guard rail or other barrier is reasonably necessary to protect persons traveling over public streets or roads in the ordinary way and with due care on their part, it is the duty of the public authority in charge thereof and of the person or corporation upon whom the duty has been imposed by contract or ordinance to build and maintain such barrier otherwise such road or street will be deemed out of repair within the meaning of the statute, and the public or delegated body may be rendered liable to anyone injured by the breach of its duty imposed by law.
Additional Syllabus by Editorial Staff.
A verdict for $10,000 held not excessive, when plaintiff, precipitated over an enbankment while riding in an automobile, sustained a broken finger and also a broken leg which required resetting and rendered her unable to perform many of her household duties.
Error to Circuit Court, Marshall County.
Action by Stephona Pollock against the Wheeling Traction Company. Verdict and judgment for plaintiff, and defendant brings error. Affirmed.
Erskine Palmer & Curl, of Wheeling, for plaintiff in error.
Martin Brown and D. B. Evans, both of Moundsville, for defendant in error.
MILLER, P.
Defendant was sued by plaintiff in March, 1917, for personal injuries sustained by being precipitated over a high embankment at a place called the "Narrows," on the public road in Marshall County, while a passenger in an automobile then owned and driven by one Daugherty. There was a verdict and to the judgment thereon for plaintiff for $10,000.00 defendant sued out the present writ of error.
The basis of plaintiff's action, rather laboriously and with great redundancy of words pleaded in the two counts of the declaration, is alleged breach of duty of the defendant company prescribed by its contract and the ordinance of the county court of said county ordained on the 20th day of October, 1893, whereby among other rights there was granted to the Benwood and Southern Street Railway Company, a corporation, the predecessor of the defendant company, the right to lay its tracks and run its cars over the county road and through what is known as the "Narrows," upon the condition among others that said railway company should lay its rails level with the roadbed and ballast the tracks so as not to interfere with the crossing of vehicles over it, and should "remove all slips that may come upon said road, and keep the side drain on said road clear, and shall build and maintain a substantial fence or guard of two rails of such height as may meet the views of said county court, on the west side of said railway from the Glendale Coal Works up through and to the north end of said Narrows." It is conceded that defendant succeeded to the rights of the original company and was burdened with all the duties and obligations imposed upon it by the contract and ordinance aforesaid.
The declaration alleges violations and breaches by defendant of these provisions of the contract and order of the county court and, that by reason thereof plaintiff on the 31st day of November, 1916, while a passenger in said automobile as alleged was thrown over the bank at a point on said road through said Narrows where a slip or slips of stone and dirt had been allowed to accumulate and obstruct the road and to dam up the water causing it to freeze and the road to become slick and dangerous to travel, and where no fence or barrier had been erected as required by said order of the county court.
The only substantial defense interposed was that the contract with and ordinance of the county court gave plaintiff no right of action against defendant for her alleged injuries; that the rights pertaining to said contract and franchise were contractual; and that only the immediate parties thereto could maintain any action thereon for breaches of its provisions. The law is well settled that where such contracts relate to subjects over which such municipal or fiscal bodies are given permissive rights but which the Legislature has not imposed a positive duty to exercise, neither the municipality nor the person or corporation to whom such power has been delegated by contract or ordinance is rendered liable to third persons for damages resulting from the omission of the municipality or the one to whom the right has been delegated to exercise the power in an efficient or particular way. The application of these principles is well illustrated in our cases of Nichol v. Huntington Water Co., 53 W.Va. 348, 44 S.E. 290; Bluefield Water Works & Improvement Co. v. City of Bluefield, 69 W.Va. 1, 70 S.E. 772, 33 L.R.A. (N. S.) 759; and also in the case of German Alliance Insurance Co. v. Home Water Supply Co., 174 F. 764, 99 C.C.A. 258, 42 L.R.A. (N. S.) 1005.
But with respect to public roads the statute, section 53, ch. 43 Code of 1891, in force at the time of the contract and order of the county court, as well as the statute existing at the time of the injuries complained of, section 56a (49), ch. 43, Barnes' Code 1916, being Code 1913, ch. 43,§ 56a (49), sec. 1815, imposes in absolute obligation upon the county courts to maintain the roads in a reasonably safe condition and renders it absolutely liable to any person injured by reason of such roads being out of repair. Section 56a (37), ch. 43, Barnes' Code 1916, being Code 1913, ch. 43, § 56a (37), sec. 1803, among other things makes it a misdemeanor punishable by fine for any person to obstruct any public road by placing or leaving therein any earth, ashes, stone or other obstruction to the travel and use of such road, and section 56a (44), ch. 43 of said Code, being Code 1913, ch. 43,§ 56a (44), sec. 1810, renders every member of the court guilty of a misdemeanor for wilfully failing and refusing to perform any duty required of such court by the provisions of said chapter. The statute, section 9, ch. 43, Code 1891, enacted pursuant to section 24, art. 8 of the Constitution, relating to the jurisdiction and powers of county courts, gave such courts the supervision and administration of the internal police and fiscal affairs of the counties including the establishment and regulation of roads, ways, bridges, public landings, etc. And given this power railroads authorized by sub-section 6 of section 50, ch. 54, Code 1891, as well as by the present statute, to use the public roads as prescribed thereby, are permitted to do so only upon first obtaining the consent of the lawful authorities, in the case of roads outside of cities and towns,...
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