Rich v. Rosenshine

• Decision Date: 25 November 1947
• Docket Number: (CC 726)
• Citation: 131 W.Va. 30
• Parties: Joe T. Rich v. Reuben Rosenshine, et al.
• Court: West Virginia Supreme Court

131 W.Va. 30

Joe T. Rich

v.Reuben Rosenshine, et al.

(CC 726)

Supreme Court of Appeals of West Virginia.

Submitted September 3, 1947.

Decided November 25, 1947.

1. Municipal Corporations

A public sidewalk, which a city by its charter is required to keep in repair, is out of repair, within the meaning of the statute, 17-9-33, Code, 1931, as amended, when the city permits it to be so obstructed by the accumulation of snow and ice as to render it unsafe for travel in the usual modes, with ordinary care, by day or by night.

2. Judicial Notice

Unless directed to do so by statute, this Court will not take judicial notice of a municipal ordinance.

3. Ordinances

A regularly enacted ordinance of a municipality which, without inequality or discrimination, imposes the duty upon all persons subject to its provisions to remove, or cause to be removed, within a specified reasonable period of time, snow and ice from a public sidewalk fronting upon a paved street of the municipality, is valid.

4. Negligence

The violation of a valid municipal ordinance is prima facie actionable negligence when it is the proximate cause of an injury.

Certified from Circuit Court, Marion County.

Action of trespass on the case by Joe T. Rich against Reuben Rosenshine and others for personal injuries. The Circuit Court on its own motion certified its rulings with questions to the Supreme Court of Appeals.

Rulings affirmed in part and reversed in part.

Herschel Rose, for plaintiff.

C. Brooks Deveny, M. E. Morgan, James F. Burns and L. E. Johnson, for defendants.

Haymond, Judge:

This action of trespass on the case was instituted in the Circuit Court of Marion County by the plaintiff, Joe T. Rich, to recover damages for personal injuries sustained by him when he slipped and fell on a snow covered concrete public sidewalk adjacent to a paved street in the City of Fairmont on December 22, 1945. The defendants are Reuben Rosenshine who, at the time, occupied, as a tenant of the owners, one of two storerooms on the first or street floor of a three story brick apartment building abutting on the sidewalk, and Lawrence F. McCray, Thomas P. McCray, Richard E. McCray, French McCray, Willa McCray Fletcher, Frank C. McCray, Alfred R. Putnam, Trustee, Thomas P. McCray, Trustee, Charles Simon McCray, George McCray, Howard Clark McCray, C. Vernon McCray and Annie McCray, herein referred to as the McCrays, who jointly own the building, and the City of Fairmont, a municipal corporation, within the business section of which the sidewalk is located.

The amended declaration of the plaintiff contains two lengthy counts.

The facts alleged in the first count, to the extent here necessary to relate them, in substance are: A heavy fall of snow during the night of December 19, 1945, and the early morning of December 20, 1945, covered and formed ice upon the public sidewalk of the city along a paved street and in front of the apartment building, rendered the sidewalk dangerous, obstructed it and caused it to be out of repair. At the time, one of the two storerooms on the first floor of the building was occupied by the defendant Rosenshine as a tenant of the defendants, the McCrays and the trustees, the owners of the building who, having reserved to themselves control of the sidewalk for the benefit of other tenants to enable them to have access to and from the building, rented its remaining portions to other persons not made defendants to the action. The defendant, the City of Fairmont, by its charter, was required to keep the sidewalk in repair and free from ob- struction, and the defendants, the tenant and the owners, by valid municipal ordinance then in force and effect, were required to remove and clear snow and ice from the sidewalk within a specified time after snow fell and ice formed upon it. The tenant and the owners failed to comply with the provisions of the ordinance and the city failed to remove the obstruction caused by snow and ice from the sidewalk and to keep it in proper repair. The plaintiff, without fault upon his part and while rightfully walking upon the sidewalk, on December 22, 1945, as the result of the failure of the several defendants to perform the foregoing duties imposed upon them, slipped and fell and sustained serious and permanent injuries to his person.

The second count, averring substantially the same facts, charges liability against all the defendants because of alleged negligence in their failure to discharge the duties imposed upon them by the ordinance. Unlike the first count, it does not charge liability against the defendant, the City of Fairmont, by reason of its breach of any duty imposed upon it by statute.

To the amended declaration and each of its counts the tenant, the owners and the city filed their several written demurrers. Numerous grounds were assigned in support of each demurrer. The Circuit Court overruled the demurrers and, on its own motion, certified its rulings to this Court.

The various assignments in support of the demurrers in substance present for decision these certified questions: (1) Whether the defendant, the City of Fairmont, is liable to the plaintiff, by virtue of the statute, for failure to keep the sidewalk in repair as required by its charter, and by reason of its failure to comply with the provisions of the ordinance, under the allegations of the amended declaration; (2) whether the defendant, Rosenshine, the occupant of the storeroom on the first floor of the building, as a tenant of the owners, is liable to the plaintiff, because of his failure to comply with the provisions of the ordinance, under the allegations of the amended declaration; and (3) whether the defendants, the McCrays, as the owners of the building, are liable to the plaintiff, by virtue of the ordinance, because of their failure to remove, or cause to be removed, snow and ice. from the sidewalk, under the allegations of the amended declaration.

As to the defendant, the City of Fairmont, the amended declaration in the first count charges that the presence of snow and ice on the sidewalk in front of the building caused it, at that place, to be obstructed and out of repair, and that its charter required the city to keep it in repair.

Situations presenting the question whether a public street or a public sidewalk is out of repair, within the meaning of the statute, which, in substantially its present form, has been the law of this State for many years, and which appears as Section 33, Article 9, Chapter 17, Code, 1931, as amended, have been before this Court in numerous cases. Some of these cases are: Toler v. City of Charleston, 115 W. Va. 191, 174 S. E. 891; Carder v. City of Clarksburg, 100 W. Va. 605, 130 S. E. 349; Johnson v. City of Huntington, 82 W. Va. 458, 95 S. E. 1044; Boyland v. City of Parkersburg, 78 W. Va. 749, 90 S. E. 347; Parrish v. City of Huntington, 57 W. Va. 286, 50 S. E. 416; Foley v. City of Huntington, 51 W. Va. 396, 41 S. E. 113; Chapman v. Milton, 31 W. Va. 384, 7 S. E. 22; Curry v. Town of Mannington, 23 W. Va. 14; Sheff v. The City of Huntington, 16 W. Va. 307; Griffin v. Town of Williamstown, 6 W. Va. 312. When a cause of action which gives rise to liability under the statute exists, the statute imposes upon municipalities whose charters require them to keep their streets, sidewalks and alleys in repair, an absolute duty and makes them liable in damages for injuries resulting from such streets, sidewalks and alleys being out of repair or obstructed in such manner as to render them dangerous to persons using them with ordinary care and in the usual modes by day or by night. Taylor v. The City of Huntington, 126 W. Va. 732, 30 S. E. 2d 14; Boyland v. City of Parkersburg, 78 W. Va. 749, 90 S. E. 347; Stanton v. City of Parkersburg, 66 W. Va. 393, 66 S. E. 514; Yeager v. City of Blue field, 40 W. Va. 484, 21 S. E. 752; Gibson v. City of Huntington, 38 W. Va. 177, 18 S. E. 447, 22 L.R.A. 561; 45 Am. St. Rep. 853; Wilson v. City of Wheeling, 19 W. Va. 323, 42 Am. Rep. 780. The liability is absolute and is not based upon the negligence of the municipality. Roth v. City of Moundsville, 118 W. Va. 283, 190 S. E. 332; Thompson v. City of Charleston, 118 W. Va. 391, 191 S. E. 547. To justify recovery, notice upon the part of the city that the defect exists is not necessary. Arthur v. City of Charleston, 51 W. Va. 132, 41 S. E. 171; Chapman v. Milton, 31 W. Va. 384, 7 S. E. 22.

In the case of Holsberry v. City of Elkins, 86 W. Va. 487, 103 S. E. 271, this Court held that an alleged defect consisting of a slightly raised portion of a public sidewalk of the city upon which a thin cover of ice and snow occurred and which was made slippery by children coasting upon it did not render the sidewalk out of repair within the meaning of the statute. That case, however, discloses a situation different from that which appears from the allegations of the amended declaration and, for that reason, is distinguishable from this case.

In Yeager v. City of Bluefield, 40 W. Va. 484, 21 S. E. 752, cited and relied on by the defendant, the City of Fairmont, recovery was denied the plaintiff who, while crossing a public street of that city to avoid mud, stepped upon a stone which slipped from under him and caused him to fall and break his leg. In that case this Court said that a municipal corporation is not an insurer against accidents which occur upon its streets and sidewalks, and that every defect in them, though it may cause injury, is not actionable. In Waggener v. Town of Point Pleasant, 42 W. Va. 798, 26 S. E. 352, this Court held that a declaration which alleged that the plaintiff, while passing over a public brick sidewalk in bad repair because rough, uneven, sideling and slippery, caught his foot against a projecting brick, fell and was injured, did not sufficiently state a cause of action under the statute.

Neither of the two last mentioned cases dealt with an alleged defect or obstruction created by snow or ice. In Boyland v. City...