Townley v. City of Huntington
| Decision Date | 07 February 1911 |
| Citation | 70 S.E. 368,68 W.Va. 574 |
| Parties | TOWNLEY v. CITY OF HUNTINGTON. |
| Court | West Virginia Supreme Court |
Submitted June 4, 1909.
Syllabus by the Court.
A space within the bounds of a city street, set apart between the sidewalk and the roadway for a grass plot, is a part of the street, for the neglect of the safe condition of which the city may be held liable.
A street or sidewalk is not in good repair when one without fault may fall from it into a dangerous hole, or an irresponsible child may venture to an unguarded pitfall within its bounds or immediately at its side.
A city owes substantially the same duties to children, properly on the streets, although engaged in play, as it does to travelers on business.
Error to Circuit Court, Cabell County.
Action by Lola Townley against the City of Huntington. Judgment for plaintiff, and defendant brings error. Affirmed.
Simms Enslow, Fitzpatrick & Baker and Geo. I. Neal, for plaintiff in error.
Isbell & Perry, for defendant in error.
This suit is one against a municipal corporation, seeking the recovery of damages for an injury to a child three years old by reason of neglect to keep a street in good repair and safe condition.
The plan of the street provided a space between the sidewalk and the roadway for grass plots, so that the street might be beautified. A good sidewalk six feet wide had been laid, but for several months a trench through the space between the sidewalk and the roadway had remained open and unguarded. This trench had been dug by an abutting lot owner for the purpose of laying a water pipe to his property. The child starting for a walk with its nurse from the home of its parents in the vicinity of this unenclosed trench, left the sidewalk in its playfulness and in endeavoring to jump the trench fell therein with the result that one of its legs was broken. The jury awarded damages for the injury, and the city seeks a reversal of the judgment entered on the verdict.
The demurrer to the declaration was rightly overruled. A good cause of action is sufficiently stated. The objections to supplying the lost declaration and writ are not tenable. The refusal to continue the case was proper. No grounds were shown warranting a continuance.
Principles enunciated in many of our cases justify the verdict and judgment. A mere reference to some of these cases suffices: Stanton v. Parkersburg, 66 W.Va. 393, 66 S.E. 514; O'Hanlin v. Oil Co., 54 W.Va. 510, 46 S.E. 565, 66 L. R. A. 893; Arthur v. Charleston, 51 W.Va. 132, 41 S.E. 171; Chapman v. Milton, 31 W.Va. 384, 7 S.E. 22; Curry v. Mannington, 23 W.Va. 14.
It is argued that the vacant space between the sidewalk and the roadway was not a part of the street. But the space was within the bounds of he street and must be deemed a part thereof. It was a portion of the street set apart to give the whole an attractive appearance. It was the esthetic part of the street. Though it was not intended for actual travel, it was left unguarded within the traveled portions. This unenclosed space being clearly within the traveled bounds of the street, a duty devolved on the city to protect pedestrians and other travelers from injury by defects in it. So situated...
To continue reading
Request your trial