Toler v. City Of Charleston

• Decision Date: 05 June 1934
• Docket Number: (No. 7895)
• Citation: 115 W.Va. 191
• Court: West Virginia Supreme Court
• Parties: Edith O. Toler v. City of Charleston

115 W.Va. 191

Edith O. Toler

v.City of Charleston

(No. 7895)

Supreme Court of Appeals of West Virginia.

Submitted May 16, 1934.

Decided June 5, 1934.

Municipal Corporations

A city is not liable under Code 1931, 17-9-33, for injuries caused to a pedestrian on the sidewalk of a street by the falling of an overhanging limb of a tree on private property.

Kenna, Judge, absent.

Error to Circuit Court, Kanawha County.

Action by Edith O. Toler against the City of Charles- ton. Verdict for plaintiff. To review a judgment for defendant, plaintiff brings error.

Affirmed.

J. Howard Hundley and A. N. Breckinridge, for plaintiff in error.

Charles Ritchie and Philip H. Hill, for defendant in error.

Maxwell, Judge;

Writ of error was awarded the plaintiff, Edith 0. Toler, to a judgment of the circuit court of Kanwaha County, setting aside a $10,000.00 verdict which had been rendered in her favor against the defendant, City of Charleston, The action is for personal injuries.

As the plaintiff was walking along a sidewalk of Truslow street of said city, an overhanging limb of a tree in the front lawn of a privately owned residential property fell and struck her, causing serious injuries. The limb, about sixteen feet long and three or four inches in diameter at the base, fell a distance of from 20 to 30 feet. There is no evidence tending to show that the external appearance of the limb indicated an unsound condition, except that it probably bore a little less foliage than the sound limbs of the tree. An examination of the limb after it fell disclosed that it had a "doty" or darkened condition indicating dry rot for a diameter of about one and one-half inches at the heart.

Is the defendant liable in damages for the plaintiff's injury?

A statute of this state contains the following provision:

"Any person who sustains an injury to his person or property by reason of any county-district road or bridge, or any street, sidewalk or alley in any incorporated city, town or village, being out of repair, may recover all damages sustained by him by reason of such injury in an action against the county court, city, town or village in which such road, bridge, street, sidewalk or alley may be, * * *." Code, 17-9-33.

This statute, in substantially its present phraseology, has been in force since the early years of our state government. Code 1868, chapter 43, section 55. The word "repair" as used in the statute includes obstructions to the highway as well as defects therein. Boyland v. City of Parkersburg, 78 W. Va. 749, 90 S. E. 347. By a statute enacted in 1921 and later amended, obstructions, within the meaning of the road law are defined to include, among other things, "trees which have been cut or have fallen either on adjacent land or within the bounds of a public road in such a manner as to interfere with travel thereon; limbs of trees which have fallen within a public road or branches of trees overhanging the same so as to interfere with travel thereon * * *." Code, 17-16-1.

Considering first the quoted provisions of the later statute, we are of opinion that limbs therein referred to are such as have fallen in the road or street and impede the customary use thereof, and not limbs in the act of falling, and that overhanging branches referred to in the statute are attached limbs extending in such manner as will cause interference with the passage of usual and ordinary traffic along the way, and not overhanging limbs many feet above the space requisite for the passage of pedestrians, horsemen and vehicles. No other analysis is consonant with the phraseology of the statute which indicates that its sole purpose is to deal with highway obstructions which impede traffic. No attempt is made in the statute to define or particularize extraneous conditions which may cause injury to a traveler.

Plaintiff takes the position that under the first above quoted statute, unqualified liability rests upon a city for injuries caused to one's person or property by disrepair of a street; that the falling of a limb upon a street comes within the purview of the statute. In support of this position, reliance is had upon holdings of this court that the liability of a municipality or county court for injuries caused by a street or highway being out of repair is ab- solute. Thus, the statement, with authorities cited, in Blankenship v. City of Williamson, 101 W. Va. 199, 202, 132 S. E. 492, 493:

"Our statute imposes an absolute liability upon cities for injuries sustained by reason of the failure of the municipal authorities to keep in repair their streets and sidewalks. Code, c. 43, sec. 167; Chapman v. Milton, 31 W. Va. 384, 7 S. E. 22; Biggs v. City of Huntington, 32 W. Va. 55, 9 S. E. 51; Yeager v. City of Bluefield, 40 W. Va. 484, 21 S. E. 752; Pollock v. Wheeling Traction Co., 83 W. Va. 768, 99 S. E. 267; Stanton v. City of Parkersburg, 66 W. Va. 393, 66 S. E. 514."

It is not to be understood, however, that said pronouncement means that whenever there is a street or highway accident, which Utopian conditions of thoroughfare might have prevented, unescapable liability therefor is fastened upon the municipality or the county court. Prior decisions have made plain the meaning with which the word "absolute" is used when applied to said statute. This matter was elucidated by Judge Brannon in Van Pelt v. Town of Clarksburg, 42 W. Va. 218, 24 S. E. 878:

"When the Court has heretofore said that the liability of the town is absolute, whether it had notice of the defect or not, it was not meant that the presence of any and every defect in a street contributing to an injury would render the town liable, without regard to the character of the defect, but that, when once such defect was shown as would be actionable, then the liability was absolute in character, whether the town had notice of the defect or not. The statute does define the character of liability, or, rather, the liability which it imposes is absolute in character when the cause or ground of liability exists; but it does not define that cause or ground of liability by saying what manner of defect in a street will fix that liability, leaving this an open question in each case, to...