Roth v. City of Moundsville

• Decision Date: 23 February 1937
• Docket Number: 8439.
• Citation: 190 S.E. 332,118 W.Va. 283
• Parties: ROTH v. CITY OF MOUNDSVILLE.
• Court: West Virginia Supreme Court

190 S.E. 332

118 W.Va. 283

ROTH v. CITY OF MOUNDSVILLE.

No. 8439.

Supreme Court of Appeals of West Virginia.

February 23, 1937

Submitted February 10,1937.

Syllabus by the Court.

In order to justify recovery against a city under Code, 17-9-33 for injuries sustained as a result of its failure to keep a sidewalk in repair, it is not necessary for the plaintiff to allege and prove negligence on the part of the defendant.

Error to Circuit Court, Marshall County.

Action by Aubra Roth against the City of Moundsville. To review a judgment for defendant, plaintiff brings error.

Reversed and remanded.

Everett F. Moore and Evans & Evans, all of Moundsville, for plaintiff in error.

John K Chase, of Moundsville, for defendant in error.

KENNA President.

In an action of trespass on the case brought by Aubra Roth against the City of Moundsville, the circuit court of Marshall County, at the end of the plaintiff's proof directed a verdict for the defendant. To the judgment of nil capiat, the plaintiff prosecutes this writ of error.

Viewing the evidence, as we must for the purposes of this review most favorably to the plaintiff, we find that she was injured on the evening of January 3, 1931, at about 7:30 by stumbling over a slab in the concrete sidewalk on Fifth street in the City of Moundsville. The block was 6 feet wide and the root of a tree growing in a narrow parkway between the curb and the outside of the concrete paving had lifted it a distance of from 3 to 4 inches on the outside and approximately 2 inches on the inside, making a perpendicular "rise" in the sidewalk between the raised block and the one next to it, the "rise" facing the direction from which the plaintiff was walking. The plaintiff testified that she had never been on that particular sidewalk before. At the time of the accident, she and her husband were walking briskly, he on the inside and she on the outside next to the street. Although there is evidence tending to show that the plaintiff was not as observant of her surroundings as was her husband who accompanied her, in our opinion, there is nothing contained in this record from which the trial court would have been justified in holding as a matter of law that the negligence of the plaintiff was the proximate cause of her own injury.

According to the showing in this record, the trial court directed the verdict for the defendant because he was of the opinion that the plaintiff had failed to prove negligence on the part of the defendant. The duty of a city to maintain its streets and sidewalks in suitable repair for travel in the ordinary mode by day and by night is an absolute duty imposed by statute. Code...