Ritz v. City of Wheeling

• Decision Date: 23 November 1898
• Citation: 31 S.E. 993,45 W.Va. 262
• Parties: RITZ v. CITY OF WHEELING.
• Court: West Virginia Supreme Court

31 S.E. 993

45 W.Va. 262

RITZ v. CITY OF WHEELING.

Supreme Court of Appeals of West Virginia.

November 23, 1898

Submitted June 6, 1898

Syllabus by the Court.

1. When, upon the facts conceded as shown, a verdict for the plaintiff would be against law, the court should, on motion exclude the plaintiff's evidence, and direct a verdict for the defendant. So it is also where, if the essential facts claimed to be proven by the evidence were proven, a verdict for plaintiff would be justified by the law, yet the evidence does not appreciably tend to prove them, but so plainly fails to do so that two reasonable men should not differ as to its insufficiency.

2. A landowner is under no duty to a mere trespasser to keep his premises safe, and the fact that the trespasser is a child does not raise a duty where none otherwise exists. Such a trespasser, injured on such premises, cannot recover of the landowner by reason of the unsafe condition of the premises unless this negligence be so gross as to amount to a wanton injury. Frost v. Railroad Co., 9 Atl. 790, 64 N.H 220.

Error to circuit court, Ohio county; H. C. Hervey, Judge.

Action by John S. Ritz against the city of Wheeling. Judgment for defendant, and plaintiff appeals. Affirmed.

CALDWELL & Caldwell, for plaintiff in error.

Henry M. Russell, Frank W. Nesbitt, and S. O. Boyce, for defendant in error.

BRANNON P.

Sarah Ritz, a child of less than five years, was drowned in a reservoir maintained by the city of Wheeling to furnish water for public use, and the administrator brought action against the city, and upon the trial the court excluded the whole of the plaintiff's evidence from the jury as insufficient to warrant a verdict, and directed the jury to find for the defendant, and upon such a verdict gave judgment for defendant, and the plaintiff appeals. The case is not one involving credibility of witnesses, or weight of evidence, or the proper inferences and deductions from evidence, which are matters proper for the consideration of a jury; for the material facts of the case are undisputed, and the case presents simply the question of law whether, upon the facts a liability rests on the city. The question is, was the city guilty of negligence? Negligence is most frequently a question of mixed law and fact, proper to go before a jury; but, where the facts are such that ordinarily men will not differ about their effect in not showing negligence, it becomes a question of law for the court, not one of fact for the jury, and, if the evidence is not colorably sufficient to show negligence, the court ought to take the case from the jury and direct a verdict against the plaintiff. When the evidence is so clearly deficient as to give no support to a verdict for plaintiff, if rendered, the evidence should be excluded from the jury. Klinkler v. Iron Co., 27 S.E. 237, 43 W.Va. 219; 1 Shear. & R. Neg. (2d Ed.) § 56. Where the case turns on the weight and effect of the evidence in proving or not proving facts necessary to support the action, and the evidence appreciably goes to prove such facts, it ought to go to the jury, as a verdict upon such evidence gives it a force which it might not have with the judge before verdict, and fortifies his case more against the action of the court, as the court cannot set the verdict aside unless plainly and decidedly contrary to or without evidence; but where the case is not such, but one of undisputed or indisputable facts, leaving it only a matter of law whether the facts show a liability on the defendant, the court should take the case from the jury, and direct a verdict, if the evidence shows no case for the plaintiff, because, if there were a verdict for him, it would be a finding against law, and the court always annuls a verdict against law upon conceded or indisputable facts. It is different, then, from a motion for a new trial, where the verdict rests on the credibility of witnesses or the weight and effect of evidence. Grayson's Case, 6 Grat. 712; Poling v. Railroad Co., 38 W.Va. 645, 18 S.E. 782 (Syl. point 8). Likely this distinction is not always thought of. Plainly, if the court does right in excluding the evidence, it commits no error in directing a verdict, as such a verdict is the inevitable consequence of such exclusion. There cannot then be any different verdict.

Let us see then whether the city is liable. In maintaining the reservoir, the city was engaged in a lawful act, within its power and duty as a municipal corporation,-a governmental act; and I do not see, in the absence of a statute imposing liability, if an open question, how it could be held liable, even if guilty of negligence, under the principle stated in Brown's Adm'r v. Town of Guyandotte, 34 W.Va. 299, 12 S.E. 707, and 1 Beach, Pub. Corp. § 749: "Where a city, under authority of a general law, undertakes a work for the sole use and benefit of the public, it is not liable for an injury caused by the negligent or defective act of its servants, unless some statute, either directly or by implication, gives a private remedy. This rule has been applied against a traveler injured by negligent blasting while excavating the foundation of a public school-house, and against a child injured by reason of an unsafe staircase of a school house, and a dangerous excavation in a school-house yard. The same rule has been applied in favor of cities in respect to town houses and court houses, and public grounds, like Boston Common. And it makes no difference, in the application of the rule, whether the injury is caused by a negligent act done in the direct performance of the public work, or is received after the completion of the work." You cannot sue the state for such cause, unless it granted remedy. Why sue a city when performing a governmental function? One citizen is as much guilty of negligence as are others; all are guilty alike. Contrary doctrine holds a city liable as if an individual engaged in private work for private ends. But most authorities oppose this view. The law seems to be that a city or town, in the use of its property, though for purely public purposes, is liable for negligence as private owners. Gibson v. City of Huntington, 38 W.Va. 177, 18 S.E. 447; 2 Dill. Mun. Corp. § 985; 15 Am. & Eng. Enc. Law, 1141, 1149, 1155. But those authorities hold that, to make a municipal corporation liable for injury received from its use of its property, negligence must be shown. Thus we encounter in this case the question whether the city was guilty of negligence to which we can attribute the death of the little girl. There can be no negligence charged upon a person unless he rests under a duty to the person complaining of damage at his hands; for if there is no duty violated, though there may be grave damage befalling the complaining party, he has no ground of action. It is a case denominated in law as "damnum absque injuria,"--damage done, but without violation of a right in the injured party; a misfortune unaccompanied by a breach of duty by the party inflicting the injury. Shear. & R. Neg. § 8. The reservoir and the land containing it were the private property of the city, used, not as a park or place of public resort or common, but only for reservoir purposes. The child was a trespasser, if you can say a child can be a trespasser. It was a trespasser, in legal sense; that is, it was on this property without right. The city was not bound to watch it. It could not be liable to it only for willful or wanton injury. I would, as an original question, hold that the law testing this case is laid down in 1 Beach, Pub. Corp. § 754, as follows: "A municipal corporation is not liable to a trespasser who goes, without license or invitation, upon its land, though unmolested, for mere pleasure or to gratify curiosity, and there meets with an injury through the corporation's negligent management of its property; and no distinction is made in favor of an infant child so receiving an injury. In such a case the municipality owes no special duty to a child straying from its parents, and the duty of protecting it is not shifted from its parents to the municipality because it chances to escape from their care. This is the general rule applicable to those who trespass on private lands, and there is no reason why municipal corporations should not have the benefit of it; but, of course, it has no application to highways, where all have a right to be."

I repeat, this is so, because no legal duty rests on the corporation. Our own cases sustain the doctrine of immunity where there is no duty placed by the law upon the party sought to be charged with damages. By reason of this doctrine, the case of Woolwine's Adm'r v. Railway Co., 36 W.Va. 329, 15 S.E. 81, denied relief to a man who visited a telegraph office kept by a railroad company to make a call of friendship on the operator, and was injured by negligence of the railroad's servants. And by reason of this doctrine, in Poling v. Railroad Co., 38 W.Va. 645, 18 S.E. 782, no damages were conceded for the death of a person standing on the railroad grounds, and killed by reason of a defective apparatus used to catch mail from a passing train. And by reason of the same doctrine, in Dicken v. Coal Co., 41 W.Va. 511, 23 S.E. 582, recovery was denied for the injury of a little child crippled by a car while on a train road of a salt company. Such must be the ruling as long as private ownership in property is recognized, as to hold otherwise would detract from the lawful dominion of a man over his own property, and contravene the canon of property expressed in the Dicken Case, that "a party who is using his own property in a lawful way cannot be guilty of a breach of duty to any one."

These cases of our own decide the case against the plaintiff,...