Post v. City Of Claksburg.
| Decision Date | 07 April 1914 |
| Citation | 74 W.Va. 48 |
| Parties | Post, Adm'r. v. City of Claksburg. |
| Court | West Virginia Supreme Court |
1. Municipal Corporations Sideivalks Public Character Recognition.
For the purposes of an action against a city for an injury alleged to have resulted from a defect in a sidewalk constructed along the side of a building and bordering on a public street, but on land belonging to the owner of the building, the sidewalk is sufficiently recognized as a public walk by the grant, by the city council, of a permit to the owners of the building to construct, maintain and operate in such sidewalk an elevator in connection with their use of the building, (p. 50).
2. Same Sidewalks Elevator.
An elevator for lowering goods from the sidewalk to a basement and lifting them from the basement to the sidewalk, so constructed as to leave no defect in the walk when lowered and not in operation, not dangerous to persons using the sidewalk as travelers when in operation and not left in such condition as to be dangerous to them when not in use, is not a public nuisance, an obstruction of the sidewalk nor a defect therein, (p. 50).
3. Same Elevator in Sidewalk Personal Injuries Contributory Negligence.
A city is not liable for the death, by the operation of such an elevator, of a person who, while traveling on the sidewalk and seeing it in use and raised, projected a portion of his body under the upper part of it and was killed by its descent, (p. 50).
4. Same Sidewalks Personal Injuries Liability.
The statute imposing absolute duty upon municipal corporations to keep their streets and sidewalks reasonably safe for use by the general public does not make them liable for injuries negligently inflicted, by persons lawfully using such public ways, upon one another, (p. 53).
(Lynch, Judge, absent).
Error to Circuit Court, Harrison County.
Action by Howard B. F. Post, administrator, etc., against the City of Clarksburg. Judgment for plaintiff, and defendant brings error.
Reversed and Judgment Rendered.
Lafayette C. Crile and E. Bryan Templeman, for plaintiff in error.
J. E. Law, for defendant in error.
A somewhat novel question arises on this writ of error, namely, whether the city is liable for the death of a boy 11 years old, occasioned by his having projected his head and shoulders under the upper part of an elevator, operated by a hotel proprietor in a sidewalk alleged to have been a public one, so that in its descent, it caught and crushed him. A verdict for the defendant was set aside by the court as being contrary to the law and the evidence and a new trial ordered.
The sidewralk in question, 7 1/2or 8 feet wide and running along the side of a hotel and bordering a public street, was used by the public generally, and the hotel company had applied to the city for permission to install and operate the elevator in it and obtained such permission, but the title to the land covered by the sidewalk seems to be in the hotel company and there is no proof of a formal dedication thereof to the city for sidewalk purposes nor of any other act of recognition thereof as a public sidewalk by the city authorities. The street as surveyed and originally accepted by the city did not cover the strip, but the hotel company made it a sidewalk. Practically, if not legally, it added the strip to the public way, which the city confessedly controls as a highway. Its application to the Council for the permit impliedly admitted the sidewalk was a public one in the true sense of the term, one under city control, and the grant of it carried an implied assertion of such character by the city. Very slight corporate recognition of a way so laid out and used by the public suffices, and it may be implied as well as express. Campbell v. Elkins, 58 W. Va. 308; Parish v. Huntington, 57 W. Va 286; Yates v. Grafton, 33 W. Va. 507; Boyd v. Woolwine, 40 W. Va. 282; Ball v. Cox, 29 W. Va. 407. That the hotel company owns the fee and constructed and maintains the sidewalk signifies little or nothing, since nearly all owners of property abutting on streets do that and not infrequently set back their fences and buildings so as to widen the street, thereby adding to a thing controled by the city or town. The sidewalk is undoubtedly a public one for the purposes of actions of this class.
But liability on the part of the city does not necessarily follow. Municipal corporations are by no means liable for all injuries occurring on their streets. Others have rights in them and some limes by their negligence inflict injuries for which the cities are not liable. If vehicles or persons lawfully using the streets injure one another by collision or otherwise, the question of liability is one between them only with which the city has nothing to do. If a pedestrian should wilfully throw his body under or in front of an...
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