Slaughter v. City of Huntington

• Decision Date: 31 March 1908
• Citation: 61 S.E. 155,64 W.Va. 237
• Parties: SLAUGHTER v. CITY OF HUNTINGTON.
• Court: West Virginia Supreme Court

61 S.E. 155

64 W.Va. 237

SLAUGHTER v. CITY OF HUNTINGTON.

Supreme Court of Appeals of West Virginia.

March 31, 1908

Syllabus by the Court.

In an action against a municipal corporation for injuries caused by an obstruction of a street or sidewalk, when the evidence of the plaintiff proves such facts and circumstances as show that the plaintiff was guilty of contributory negligence in causing the injuries, the court should, on the motion of the defendant, exclude all the plaintiff's evidence from the jury.

[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§§ 1754-1756.]

Contributory negligence, when it depends upon questions of fact and testimony, is for the jury; but when the facts are undisputed, or indisputably established by the evidence of the plaintiff, the question becomes one of law for the court.

[Ed Note.-For cases in point, see Cent. Dig. vol. 37, Negligence §§ 333-346.]

Error from Circuit Court, Cabell County.

Action by J. Slaughter against the city of Huntington. Judgment for plaintiff, and defendant brings error. Affirmed.

Isbell & Perry, for plaintiff in error.

H. C Warth and Simms, Enslow, Fitzpatrick & Baker, for defendant in error.

BRANNON J.

J. Slaughter sued the city of Huntington to recover damages from falling while crossing a street, and the court directed a verdict for the defendant, and Slaughter has brought the case here. The only evidence is that presented by the plaintiff. Upon this we find beyond reasonable disputation the following facts: That the plaintiff on the 26th September, 1906, was attending a conference at the church of the United Brethren in Huntington; that he was at a boarding house, and passed along Twentieth street in the forenoon going to and returning from the church; the same in the afternoon, thus passing four times along the street in daylight. It may be that in going to the church for the evening service he could see the condition of the street before dark. The city was paving Twentieth street for a long distance. For a long distance it had been excavated and excavation was still going on. At the intersection of Twentieth street and Fifth avenue this excavation extended somewhat into the avenue. There the street was plowed up and uneven. Large quantities of brick were piled along the edge of the sidewalk of Twentieth street between Fourth and Fifth avenues and elsewhere. The plaintiff as a witness says that he saw these piles of brick, and knew they were for paving the street. He was asked whether he saw the excavation of Twentieth street, and answered: "I don't remember of seeing anything particular. If I remember right the street had been having a going over of some kind. I wouldn't be positive about that, and those brick were piled along there up near the excavation there." He was asked whether he saw any evidence that work had been done in front of the church, or that there was excavation there. His answer was, "I wouldn't venture to say whether I did or not." He said when he saw the brick there they were for paving. When asked if Twentieth street was not smooth all along there, his answer was, "No, I don't think it was." He said, "If it was plowed up, I did not notice or don't remember it." Thus we see that the plaintiff himself knew that the street was being paved. He said it had been having a going over and that it was not smooth. He saw the excavation from his words above. The minister of the church at Huntington, introduced by the plaintiff, when asked as to the condition of the street where the plaintiff fell, said: "Well, it was in pretty bad condition. It had been plowed and there were bumps, and the place where they showed me he had fallen was a high place, and kind of a peak each way." Now, the plaintiff made four or five trips along this street in daylight, seeing, as he himself says, great piles of brick, knowing that the street was being paved, seeing its excavation, seeing its condition. He could not help seeing and knowing its condition. Where were his eyes and his common sense? He does not deny that he knew the condition of the street. From his own evidence we must say that he did know it. A man cannot say that he did not see a log or a large stone or a deep hole in a highway. Having eyes, we must say that he did see them. The plaintiff cannot say that he did not know the condition of the street. Yet, with knowledge that the street was in no condition for travelers to cross it, he got down from the pavement into this excavated street to the rough plowed ground, and tried to cross Twentieth street, and encountered the large bump or peak, and fell. This he did on a dark, rainy night when the ground had been made slippery by the rain.

This was a dangerous, risky step for a man of 64 years. It is argued that there were no warning or signal lights to tell the pedestrian that the work was going on. He already knew this. Such signals are designed for those who do not know of the danger. And the absence of street and signal lights made it all the more rash for him to go down off the pavement into that dark excavated street. In Phillips v. County Court, 31 W.Va. 480, 7 S.E. 428, we find the court saying: "He cannot shut his eyes against apparent dangers, and drive recklessly along the highway. He is bound to keep his eyes open, and maintain a proper degree of watchfulness against danger. *** In any action against a town or county for injury...