Taylor v. City of Huntington

• Decision Date: 25 April 1944
• Docket Number: 9564.
• Citation: 30 S.E.2d 14,126 W.Va. 732
• Parties: TAYLOR v. CITY OF HUNTINGTON.
• Court: West Virginia Supreme Court

30 S.E.2d 14

126 W.Va. 732

TAYLOR v. CITY OF HUNTINGTON.

No. 9564.

Supreme Court of Appeals of West Virginia.

April 25, 1944

Hogsett & St. Clair, of Huntington, for plaintiff in error.

Okey P. Keadle, of Huntington, for defendant in error.

RILEY Judge.

Beatrice Taylor instituted this action in trespass on the case against The City of Huntington, a municipal corporation, to recover damages for alleged personal injuries claimed to have been occasioned by a fall on Sycamore Street, a public street. Defendant prosecutes this writ of error to a judgment of the Circuit Court of Cabell County in the amount of five thousand dollars based upon a jury verdict.

Plaintiff about fifty-six years of age, residing on Sycamore Street tripped over and fell on a driveway within the legal limits of that street leading from the paved portion thereof to private property abutting on the street. The driveway was situated on the southeast portion of the street in a block formed by the intersection of Oakland and Springdale Avenues, near the latter intersection. Although on the public highway, it had been constructed by the property holders and, except for wear and tear, its condition remained the same from 1932 until the time plaintiff was injured. Between the intersecting streets there was a four-foot public sidewalk along the northwest portion of Sycamore Street. The paved portion of the street, twenty feet in width, paralleled this sidewalk. Along the southeast edge of the pavement there was constructed a concrete curb rising six inches above the pavement. The part of the street between the curb and the southeast property line of the street was unimproved. It was over this space that the driveway was paved, which driveway at the place where plaintiff fell, extended about three inches above the ground. The record discloses that the defendant had never done or required any of the abutting property owners to do any work on the unimproved part of the street, except it had laid a sewer thereon. At or near where plaintiff fell the municipality was maintaining a manhole for a sewer. Two water meters had been installed there but the record does not disclose by whom the installation had been made. These meters were even with the ground but the manhole extended about two inches above the ground.

At the time injured, plaintiff was returning to her home from her son's residence, and was walking along the paved portion of Sycamore Street with the curb immediately to her left. The pavement, in the direction in which plaintiff was going, was up a gradual incline leading to a slight knoll, situate a short distance beyond the point where she fell. It was daytime and the sun was shining. As she neared the driveway she observed a grocer's truck approaching her, travelling in a northeasterly direction and on its right side of the pavement. Another vehicle was parked on the opposite side of the street. When the truck came within thirty feet of her, according to the driver's testimony, "She stepped up on the curb and when she stepped up on the curb it seems like she lost her balance and starts stumbling sideways." Plaintiff testified:

"And I saw an approaching car. It was coming fast. Well, I have always made a practice of letting cars have the right of way because I never wanted to be struck by one. And as this car was approaching me I undertook to get out of the way, and I stepped over the curb, and as I stepped over the curb I took two or three steps, and I struck my toe against this driveway where it sticks up three or four inches above the ground. And I saw I was going to fall and I run two or three steps more to save myself but I couldn't, and I went down with my hand--on my hand."

She testified further that she did not step over the curb and stand there because, "I was on my way home, I had supper to get; I couldn't just stand there and wait", and that she was not looking, but "was getting out of the way of that car."

The record discloses that Mrs. Taylor had two routes to go from her home to her son's residence: one down Olive Street, which runs parallel to Sycamore Street, along which there was a sidewalk all the way; and the other along the route she was taking at the time injured.

Reliance for recovery is had upon Chapter 40, Article X, Section 17, Acts West Virginia Legislature, First Extraordinary Session, 1933, (formerly Code, 17-9-33). This section imposes an absolute liability on incorporated cities, towns, and villages for injuries sustained on account of their public streets, sidewalks and alleys being out of repair or obstructed so as to make them dangerous to travel thereon in ordinary modes by day or night. Chapman v. Milton, 31 W.Va. 384, 7 S.E. 22; Gibson v. City of Huntington, 38 W.Va. 177, 18 S.E. 447, 22 L.R.A.,N.S., 561, 45 Am.St.Rep. 853; Yeager v. City of Bluefield, 40 W.Va. 484, 21 S.E. 752; Campbell v. City of Elkins, 58 W.Va. 308, 52 S.E. 220, 2 L.R.A.,N.S., 159; Michaelson v. City of Charleston, 71 W.Va. 35, 75 S.E. 151; Boyland v. City of Parkersburg, 78 W.Va. 749, pt. 1 syl., 90 S.E. 347; Williams v. Main Island Creek Coal Co., 83 W.Va. 464, pt. 5 syl., 98 S.E. 511; Patton v. City of Grafton, 116 W.Va. 311, 180 S.E. 267; Roth v. City of Moundsville, 118 W.Va. 283, 190 S.E. 332. It follows that it is unnecessary, in an action brought under said Section 17 of the statute to allege or prove negligence. Roth v. City of Moundsville, supra; Chapman v. Milton, supra. "While the liability of municipal corporations is in its nature absolute, that does not refer to the cause of action. That must exist before the liability arises." Yeager v. City of Bluefield, supra; Van Pelt v. Town of Clarksburg, 42 W.Va. 218, 24 S.E. 878; Williams v. Main Island Creek Coal Co., supra; and Patton v. City of Grafton, supra.

That Sycamore Street, at the point where plaintiff fell had been established as a public street fifty feet in width, seems clear from the record. The street is so indicated on a plat entitled, "Map of Walnut Hills", a subdivision of the City of Huntington recorded in the county clerk's office. The sidewalk on the opposite side of the street from the place where plaintiff fell, as well as the twenty-foot pavement, was constructed and maintained by the city, and the city had exercised control over the unimproved part by the construction and maintenance of a sewer and manhole thereon. The street, we think, has been dedicated for a width of fifty feet, and the exercise of control by the city, coupled with the use by the public, is such an acceptance as to make Sycamore Street a public street for its entire width. Campbell v. City of Elkins, supra, pt. 1 syl., Williams v. Main Island Creek Coal Co., supra, pt. 2 syl. The liability of a municipality under the statute extends to the unimproved, as well as the improved, part of a street, and the public had the right to use the whole of the street. In Garr v. City of McMechen, 86 W.Va. 594, pt. 2 syl., 104 S.E. 101, this Court held:

"The duty of a municipal corporation to keep its public streets and alleys in a reasonably safe condition for travel thereover in the ordinary mode, by day or by night, extends, not only to that part of such streets actually used for travel, but to adjacent parts so close to the traveled way as that it may reasonably be contemplated that obstructions thereon or defects therein may cause injury to travelers, should they slightly diverge from the beaten path or traveled way."

See also:Biggs v. Huntington, 32 W.Va. 55, pt. 3 syl., 9 S.E. 51; Townley v. City of Huntington, 68 W.Va. 574, 70 S.E. 368, 34 L.R.A.,N.S., 118; Baker v. City of Wheeling, 117 W.Va. 362, 185 S.E. 842; and Virginia Hot Springs Co. v. Lowman, 126 Va. 424, 101 S.E. 326.

That the record does not disclose whether the city had actual notice of the driveway and that it extended above the adjacent terrain, does not preclude recovery. Since 1932 the driveway was in the same condition, except for wear and tear, as it was when plaintiff fell. In these circumstances defendant is charged with notice. Actual notice is, therefore, not required. Sheff v. City of Huntington, 16 W.Va. 307, pt. 1 syl.; Chapman v. Milton, supra; Patton v. City of Grafton, supra. The statement on page 202 of the opinion in Blankenship v. Williamson, 101 W.Va. 199, 132 S.E. 492, on page 493, to the effect that the municipality must have actual notice that its public ways are not in a reasonably safe condition for travel, is disapproved.

Whether the driveway constituted such a defect in Sycamore Street as to render the street out of repair is a question of law (Parrish v. City of Huntington, 57 W.Va. 286, pt. 2 syl., 50 S.E. 416; Silverthorn v. City of Chester, 106 W.Va. 613, pt. 1 syl., 146 S.E. 614), "where the facts are undisputed and are such as would reasonably support only one of the two theories". The instant case presents no dispute as to the condition of the unpaved sidewalk portion of the street. The driveway extends across the entire width of the unimproved part of the street, and at the point where plaintiff fell extended about three inches above the adjacent terrain. In Garr v. City of McMechen, supra, 86 W.Va. at page 597, 104 S.E. at page 102, this Court expressed the view that where a municipality has improved only a portion of a public street for travel "that is a sufficient designation to the public that that part of the street alone is intended generally for that purpose, and that anyone travelling the street must expect, if he goes off of such improved way, to find it *** obstructed"; and that "whoever travels must do so at the risk of finding such obstructions as would ordinarily exist in an unimproved way". In the case just cited the implication is that liability would exist only where the...