Riley v. City Of Ronceverte

• Decision Date: 19 November 1929
• Docket Number: (No. 6507.)
• Citation: 151 S.E. 174
• Court: West Virginia Supreme Court
• Parties: RILEY. v. CITY OF RONCEVERTE.

151 S.E. 174

RILEY.

v.CITY OF RONCEVERTE.

(No. 6507.)

Supreme Court of Appeals of West Virginia.

Nov. 19, 1929.

Rehearing Denied Jan. 13, 1930.

(Syllabus by the Court.)

Error to Circuit Court, Greenbrier County.

Action by Josephine Lee Riley against City of Ronceverte. Judgment for defendant, and plaintiff brings error. Affirmed.

H. L. Van Sickler, of Lewisburg, and Holt & Holt, of Huntington, for plaintiff in error.

McWhorter, White & Browning, of Lewisburg, for defendant in error.

WOODS, P. This is an action of trespass on the case, instituted in the circuit court of Greenbrier county, to recover for damages resulting from injuries alleged to have been caused by reason of a collision of an automobile in which plaintiff was then a passenger, with an alleged obstruction in the streets of the city of Ronceverte. This writ is prosecuted to a judgment in favor of. the city.

The alleged obstruction, which is located at the intersection of Frankford road and Main street, is what is commonly known as a "silent policeman" or traffic guide. It is an ordinary galvanized hot water tank (about 11³/₄ inches in diameter) filled with cement, and is so planted that the top rises about 34 inches above the surface of the street. Its position in relation to the intersection is 16 feet from the left and 13 feet from the right curb of Frank-ford road, as a party proceeds north toward Lewisburg, and in the south edge or curb line of Main street. Such a traffic guide had been maintained at this point for four years prior to the accident. It is also in evidence that five other intersections in the city of Ronceverte are provided with similar guides.

Plaintiff arrived in Ronceverte on the evening of the accident on the train, and was met at the station by her brother-in-law. At the time of leaving for the barter's home (in the direction of Lewisburg), night had fallen. According to the brother-in-law, whose testimony is corroborated by the plaintiff, he was required, by reason of the downpour of rain, to look around the edge of the windshield in order to properly direct the course of the car. After leaving the railroad station, the car was driven out to Frankford road, where it passed around a "silent policeman, " and then north on that road in the direction of Lewisburg. Before reaching the next intersection (Main street), the driver inclined the car to the left to avoid two other cars which were parked on the right-hand side of Frankford road 50 feet south of Main street, and, after passing them, turned back toward the right of the street. The left front wheel of the car struck to the left of center of the "silent policeman, " and, after the rebound, the frame of the car struck it. Both occupants of the car testified that they could not see the traffic guide. The driver stated that he had visited Ronceverte during the four years previous to the accident on an average of once every three weeks, and had used the Frankford road about half of the time; that he knew of the presence of the traffic guide; that he drove into Ronceverte on the evening of the accident over that road.

The plaintiff testified that she had averaged two trips a year to her sisters for some years prior to the accident; and that she had traveled the Frankford road on such occasions. On being asked if she had seen the traffic guide, she replied: "Each time I passed in the daylight on all other occasions I have seen the 'dead man.' " Other facts necessary to a decision of the case will be dealt with later in this opinion.

The breach of duty set up in the declaration is that the city had caused the said traffic guide to be set or placed in an upright position in the traveled portion of the said road and intersection without painting or lighting it so that the same would be visible to travelers on the highway. As to this specification of negligence the city claims that the "silent policeman" in...