Shriver v. Marion County Court
| Decision Date | 01 February 1910 |
| Parties | SHRIVER v. MARION COUNTY COURT. |
| Court | West Virginia Supreme Court |
Submitted June 10, 1909.
Syllabus by the Court.
If a traveler upon a highway, in attempting to pass over a defect therein, open and apparent and of which he had full knowledge, is thereby injured, and there was no necessity for his endeavor to pass over it, he is deemed in law to have assumed the risk incident to the attempt, and denied compensation for the injury on the ground of contributory negligence.
That it is not negligence per se to use a highway, known to be in bad condition, does not imply right in a traveler to compensation for injuries, recklessly incurred, nor freedom from duty to suffer reasonable abatement of strict legal rights in respect to highways and take reasonable measures for his safety, even to the extent of some delay and effort to avoid injury.
On the appearance of a clear case of contributory negligence, the trial court should take the case from the jury upon a proper demand for such action.
A traveler, having two reasonably convenient ways for his journey, one of which is dangerous and the other not, assumes the risk of injury, if he uses the dangerous way, and cannot recover for any injury he may thereby sustain.
If the evidence leaves it uncertain whether there was a safe and available way, either by a public road or over adjacent private property, by which a traveler, injured by an obvious defect in a highway, could have avoided it, the necessity of assuming the risk incident to the attempt to use it is a question for the jury.
If the circumstances justify a traveler in assuming the risk incident to an attempt to use a dangerous place on a highway, he is required to exercise no more than ordinary care for his safety in doing so, and whether he exercised such care or not is generally a question for the jury.
Error to Circuit Court, Marion County.
Action by John H. Shriver against the County Court of Marion County. Judgment for plaintiff, and defendant brings error. Affirmed.
Scott C. Lowe and Charles Powell, for plaintiff in error.
Howard N. Ogden, for defendant in error.
A demurrer to evidence of consistent and uniform tendency adduced by the plaintiff, in an action of trespass on the case, instituted in the circuit court of Marion county by John H. Shriver against the county court of said county, to recover damages for injury to his person and property, caused by a defect in a highway, which it was the duty of the defendant to keep in repair, was overruled and a judgment rendered for $200, the amount of the conditional verdict, and the only real question raised on the writ of error is whether recovery is barred by the plaintiff's contributory negligence or assumption of risk.
Stating the facts, each in his own terms, the witnesses say there was a large mud hole, in said county, just outside of the city of Mannington, on a public road, called "The Pike." It was deep and troublesome, and so nearly occupied the width of the road that there was not sufficient room on either side to permit vehicles to pass around it with safety and certainty but there was almost sufficient room for that purpose on one side of it. The hole was from two to three feet deep, and partially filled with mud and water. Some of the witnesses say the surface of the water was a foot below that of the adjacent ground, and that the mud and water were deep enough to go over the front axle of an ordinary wagon. The drop of a wagon from solid ground into this hole was almost perpendicular on one side. In other words, the bank was straight up and down. This peculiarity was due to the fact that the hole was at the end of a construction of poles or logs, known as "corduroy" work, on a portion of the road. The level space between the hole and the porch of Harden's store was about three feet, less than the width between the tires of an ordinary road wagon. From this the ground sloped to the bottom of the hole. In attempting to drive around the hole on this space, two wheels would necessarily pass along the slope, while the others would be on the higher level space. And as such an attempt involved a curve, in the case of a wagon of any length, a hind wheel would necessarily pass through a portion of the mud hole. Generally, people drove through the place. Occasionally, a short vehicle or a wagon not top heavy would pass around without upsetting. All the witnesses agree that the hole was obviously dangerous. There were other roads the plaintiff might have used to reach his destination on the occasion of the accident, but these were also dangerous. In fact, all the public roads leading in that direction had become so bad that a way made across private lots a short time before the accident was used, and even this seems to have led down to the mud hole, here involved. The plaintiff was a teamster, engaged in hauling and delivering merchandise generally in and about the city of Mannington and using, in this business, a wagon of considerable length and of the class known as "undercut," the bed standing high enough above the frame of the wagon at the front end to permit passage of the front wheels under it in turning. The bed had a flaring top which extended over the wheels, and was equipped with a seat and a footboard. Occupying this seat, the driver was a considerable distance from the ground and above the level of the two horses by which the wagon was drawn. Driving this wagon, well laden with merchandise for delivery, and coming to the mud hole, plaintiff stopped his team and deliberated as to whether he should attempt to drive through it or to go around it. He discussed this question with a Mr. Lang, the owner of the merchandise, who occupied the seat with him, and decided to attempt to go around it. He says he chose this course because he had observed that, in driving into it on former occasions, the footboard struck the horses on the hips, when the front wheels dropped off of the corduroy into the hole. Lang says he attempted to drive around because of his inability to make the turn in the direction in which he wanted to go, if he drove through it. Having driven partially around, Lang says he stopped the team for a moment and made a turn, whereupon the wagon turned over, throwing them both to the ground and breaking the plaintiff's leg, injuring his wagon and destroying some of the articles he was hauling. The evidence leaves no doubt that the cause of the upsetting was the sliding of the right hind wheel into the mud hole. It is also beyond question that the plaintiff knew all about this mud hole. Having driven through it before, he knew its depth and its peculiarities in at least a general way. Certainly he had enough information concerning it to apprise him of its dangerous character. He had full knowledge of every material fact and circumstance pertaining to the defect. He also knew the size and character of his wagon and the nature and weight of the load it was carrying. Besides, he was an experienced teamster, fully capable of determining whether or not the attempt he was making was dangerous.
The negligence of the county court in permitting such a defect in its highway is clear and undoubted. We have decisions which lay down a very liberal rule in favor of municipal corporations, exonerating them from negligence when a defect in a highway is not obviously dangerous (Waggener v. Point Pleasant, 42 W.Va. 798, 26 S.E. 352; Van Pelt v. Clarksburg, 42 W.Va. 218, 24 S.E. 878; Yeager v. Bluefield, 40 W.Va. 484, 21 S.E. 752), but the place involved in this controversy appears from the evidence to have been actually dangerous. Some of the witnesses say it was dangerous, and all unite in a description of it which makes its dangerous character manifest. If the only question involved were that of the negligence of the county court, the judgment would be clearly right, and the action of the court in overruling the demurrer to the evidence entirely justifiable. We may go farther, and say a contrary finding by the jury, if the evidence had been allowed to go to it, should have been set aside, if excepted to, and nothing else appeared in the case. From this it follows that contributory negligence on the part of the plaintiff is the only possible defense, and therefore its existence and effect the only inquiries arising on the writ of error. This involves consideration, not only of the rights of a traveler upon a highway, but also his duty, under circumstances such as this record discloses, and the elements of contributory negligence.
A citizen has the right to use a defective highway. No law forbids it nor does it work harm or injury to the public or any individual. It is equally clear that he has the choice of all roads leading to his destination and is not bound by any law or public duty, either to confine himself to any particular road or to adopt any particular mode of use. What road he shall use and how he shall use it are determined by his own will and considerations of private convenience and necessity. It is well also to note that, in addition to all the public roads, he may, under certain circumstances rightfully pass over private property. If, in traveling upon a highway, he finds it obviously dangerous at any point, he may pass around such a place over adjacent private property and even remove fences and destroy crops in doing so, provided he does not deviate farther from the road, nor do more injury to the private premises, than is actually necessary, and no other reasonably convenient public way is available. Highways are established for the service of the public. It is for the public good that the private owner of land must yield a portion of it for such service. Ways...
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