Rine v. Morris.

• Decision Date: 28 April 1925
• Docket Number: (No. 5340)
• Citation: 99 W.Va. 52
• Court: West Virginia Supreme Court
• Parties: Ines May Rine v. Charles E. Morris et al.

99 W.Va. 52

Ines May Rine

v.Charles E. Morris et al.

(No. 5340)

Supreme Court of Appeals of West Virginia.

Submitted April 21, 1925.

Decided April 28, 1925.

1. Pleading Construction of Pleading Equivocal on its Face Most Unfavorable to Pleader Will be Adopted. If a pleading be equivocal on its face, the construction most unfavorable to the pleader adopted, (p. 53).

(Pleading, 31 Cyc, p. 79.)

2. Negligence: One Leaving Instrumentality Dangerous to Children Must Use Ordinary Care to Prevent Injury.

One leaving an instrumentality dangerous to children at a place where they have a right to be, is charged with notice of its attraction to them. It is his duty to use ordinary care to prevent injury to a child thereby, (p. 54).

(Negligence, 29 Cyc. p. 464).

Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.

Error to Circuit Court, Wetzel County.

Action by Ines May Rine against Charles E. Morris and others. From an order sustaining a demurrer to the declaration, plaintiff brings error.

Affirmed and remanded.

Far rick & Lemon, for plaintiff in error. Underwood & Moore, for defendants in error.

Hatcher, Judge:

This is an action of trespass on the case brought in the Circuit Court of Wetzel County. A demurrer was sustained to the declaration in the court below, and the case is here on error.

The declaration alleges that the defendants were engaged as independent contractors in excavating, levelling, grading, and constructing a public or state road or highway, in the county of Wetzel, for the State Road Commission of West Virginia, extending from a point south of the village of Steelton northward to the boundary line of the county; that in the performance of their work, they used a certain road scraper, which was left for the night on the side of the said road about 60 feet from the home of the plaintiff, with certain parts of its machinery in an insecure and dangerous position; that it was their duty to have exercised ordinary care to have left the scraper in a safe condition, etc.; that the plaintiff is an infant of tender years, being then of the age of 8 years; that while playing around and near her home, she was attracted by a long rope hanging loosely from a lever on the scraper; that without any knowledge on her part of the insecure position of the lever, she shook the rope in childish play, causing the lever to fall upon her, breaking a bone of one of her legs, and otherwise greatly injuring and crippling her, etc.

The defendants' brief contends that the allegations in the declaration do not warrant the inference that the place of injury was on a public road, or where the plaintiff had a right to be. It points particularly to the only description of the road given in the declaration, to-wit: '' defendants were engaged as independent contractors in excavating, levelling, grading and constructing a public or state road or highway.'' It says this allegation means the road was then unfinished and unsuitable for public use and was not open to the public. It concludes that the plaintiff was therefore a trespasser and the defendants owed her no duty except not to injure her wilfully.

The brief of the plaintiff proceeds upon the theory that the place where the injury occurred was a public road, and that the defendants were liable for leaving the scraper in a position dangerous to the public. In oral argument before the court, plaintiff's counsel contended that the allegations relative to the work on the road were not inconsistent with the right of the public to use the road, and requested a construction thereof favorable to the demurree.

In the case of White v. City of Charleston, 98 W. Va. 143, 126 S. E. 705 (Advance Sheets), Judge Lively, speaking for the court, said:

"It is presumed that a party in his pleading will state his case most favorably for himself, and that if he does not state it with all its legal circum- stances, the case is not in fact favorable to him, and it is a rule of construction that if a plea on its face has two intendments it shall be construed most strongly against the pleader. 1 Chitty Pleading, p. 700."

'' The common-law rule which is still in existence where not changed by statute is that a pleading will be construed against the pleader, that is, if the meaning of the words be equivocal and two meanings present themselves that construction is to be adopted which is most unfavorable to the party pleading, on the theory that it will be presumed that the pleader has stated his case as strongly as he can. * * * But even under this code rule, while the pleader is to be given the benefit of every...