Thompson v. City Of Charleston

• Decision Date: 23 March 1937
• Docket Number: No. 8481.,8481.
• Citation: 191 S.E. 547
• Court: West Virginia Supreme Court
• Parties: THOMPSON. v. CITY OF CHARLESTON.

191 S.E. 547

THOMPSON.

v.CITY OF CHARLESTON.

No. 8481.

Supreme Court of Appeals of West Virginia.

March 23, 1937.

Rehearing Denied June 17, 1937.

Syllabus by the Court.

1. Section 95 of the charter of the City of Charleston (Acts 1929, Municipal Charters, c. 4) relating to the filing of claims in personal injury cases against the city within thirty days of the time of injury, imposes a condition precedent to the right of the claimant to sue the city, and in the absence of allegation and proof that the provisions of that section have been complied with, the omission may be taken advantage of after verdict.

2. A twelve-inch gap three and one-half inches deep in a curb, not at a street crossing, the sides and bottom of which are finished and smooth and not uneven or broken, is not such a defect as renders the street out of repair within the meaning of Code, 17-9-33.

Error to Circuit Court, Kanawha County.

Trespass on the case by Flora Beatrice Thompson, an infant, by her next friend, against the City of Charleston. To review a judgment setting aside a verdict for plaintiff, plaintiff brings error.

Affirmed and remanded.

Salisbury, Hackney & Lopinsky and Lon G. Marks, all of Charleston, for plaintiff in error Philip H. Hill and P. G. Meador, both of Charleston, for defendant in error.

KENNA, President.

Flora Beatrice Thompson, an infant of nine years, by her next friend, sued the City of Charleston in trespass on the case. She had fallen at a point in Ash street between Magazine street and Bigley avenue where a section of curb twelve inches long and three and one-half inches deep had been left out in the original construction of the street. The street itself was paved with concrete, as was the sidewalk with the exception of eighteen inches or two feet just inside, the curb and a like space between the sidewalk, and the property line. The plaintiff, with her older sister, was going on an errand from their nearby home to a neighbor's about 9 o'clock in the evening some time in April, 1934. They ran part of the way, but as they came to Ash street they slowed down to a fast walk, crossed the street and going onto the sidewalk at the point where the gap in the curb was located both children fell. The older sister was not injured. The cause of her fall is not made plain. The testimony is that the plaintiff fell just at the gap in the curb and struck her right knee against the edge of a metal curb box which stood at that point in the parkway between the curb and the outside edge of the sidewalk. Her right knee was severely cut.

There was a verdict for $750, which the trial court set aside, and to that judgment the plaintiff below prosecutes this writ of error.

There are several assignments of error that we do not believe it is necessary to discuss, because of the fact that we have concluded, after very careful consideration and an exhaustive investigation that discloses practically no cases in point, that the gap in the curbstone described in this case is not sufficient to render the street unsafe for travel in the ordinary mode by day and by night within the meaning of Code, 17-9-33, under which this action is brought.

It has been argued by defendant in error that because the condition of this curbstone was a part of the original construction of the street, it does not constitute a condition making the street out of repair in the sense contemplated by the statute. We do not wish it understood that we are holding that the question of whether a defect in the street was due to its orig inal construction or to lack of maintenance is determinative of anything material under the statute in question. If the city sees fit to build a street which, by reason of the manner in which it is originally constructed, is unsafe for travel, we do not believe that the city could be excused from liability upon a simple showing that the dangerous condition of the street had been due to its original construction. Neither do we believe that in order to avoid that result, the plaintiff in an action of this sort must show that the original plan for the construction was negligently adopted by the city. The question, as we have often said, is not one of negligence but one of absolute duty on the part of the city, and it matters not what caused the unsafe condition of the street.

We are resting the decision of this case upon the fact that we do not believe that this gap in the curbstone rendered the street unsafe for travel as contemplated by the statute. The gap was not rough and broken, but was finished and smooth. It had been purposely left at a point where the curb had been slightly curved on account of a standing tree. There was nothing inherently dangerous about the condition, and apparently the only way a person could be hurt by it was by making a misstep in the assumption that a curb was there, a fact which in itself would usually display a lack of care on the part of the pedestrian.

But it is said that this street was badly lighted on account of the shadow of a nearby tree which made it almost impossible to see the curb and opening, and the jury, by its verdict, probably indicated that they were impressed with this contention. If the duty of the city were based upon negligence, or were otherwise relative, it might be that this would be an argument of consequence. But the city's duty is not that. It is absolute. Roth v. City of Moundsville (W.Va.) 190 S.E. 332. And in an absolute sense we do not...