Valentine v. Wheeling Elec. Co.
| Decision Date | 20 December 1988 |
| Docket Number | No. 18225,18225 |
| Citation | 376 S.E.2d 588,180 W.Va. 382 |
| Parties | Naomi Jean VALENTINE v. WHEELING ELECTRIC COMPANY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Obstructions within the meaning of W.Va.Code, 17-16-1, as amended, include utility poles erected on a public road in such a way that they interfere with the use of or prevent the easy, safe and convenient use of such public road for public travel. Utility poles erected in such a way are public nuisances within the contemplation of W.Va.Code, 17-16-1, as amended. Therefore, it is not error for a trial court to give an instruction stating that to be a public nuisance, a utility pole must be erected in such a way that it prevents the easy, safe and convenient use of a public road for public travel.
2. "On appeal of a case involving an action covered by the Rules of Civil Procedure, this Court will disregard and regard as harmless any error, defect or irregularity in the proceedings in the trial court which does not affect the substantial rights of the parties." Syl. pt. 2, Boggs v. Settle, 150 W.Va. 330, 145 S.E.2d 446 (1965).
3. "In the absence of a particularized showing on the part of the remaining parties to a suit that one or more of them will suffer prejudice if the trial court fails to advise the jury of the dismissal of one or more parties to the suit, or that another party has taken an unfair advantage of the dismissal in its presentation and argument of the case, there is no duty on the trial court to so instruct the jury regarding the dismissal of a party from the suit." Syl. pt. 2, Grillis v. Monongahela Power Co., 176 W.Va. 662, 346 S.E.2d 812 (1986).
John T. Madden, Madden & Whorton, Moundsville, Jeremy C. McCamic, Jay T. McCamic, McCamic & McCamic, Wheeling, for appellant.
John E. Artimez, Jr., Bachmann, Hess, Bachmann & Garden, Wheeling, for appellee.
This case is before the Court upon the appeal of Naomi Jean Valentine, from a jury verdict which found no negligence on behalf of the appellee, the Wheeling Electric Company, in the Circuit Court of Marshall County. The appellant requests that this Court reverse the final order of the circuit court on the issue of liability, or in the alternative, order a new trial. This Court has before it the petition for appeal, all matters of record, and briefs of counsel.
The appellant was a passenger in an automobile driven by David Wolfe on May 7, 1984. The vehicle was traveling north on a public road known locally as Jefferson Avenue Extension. (The road is also designated State Route 88 and U.S. Route 250). A tire on the vehicle blew, and the car swerved out of control, crossing the center of the road, and striking a concrete utility pole.
The utility pole belonged to the appellee and was located about five feet from the edge of the road surface.
The appellant sustained injuries to her head, back, and leg as a result of the collision with the utility pole, and filed suit against the appellee, seeking damages for her injuries. The appellant's complaint maintained that the appellee's pole was negligently placed within the bounds of a public road and constituted a public nuisance.
As an affirmative defense in its answer, the appellee asserted that the accident was caused solely by the negligence of David Wolfe, the driver of the automobile. The appellee also instituted a third-party action against David Wolfe, alleging Wolfe's negligence, and asserting that if the appellee was negligent in any way, its negligence was secondary and passive.
Before the trial, the trial court dismissed the third-party complaint against David Wolfe and the appellee withdrew its affirmative defense asserting Wolfe's negligence. The order reflecting dismissal of Wolfe was entered by the trial court on the first day of trial, although the appellee maintains that it had decided to not pursue the third-party action and advised the trial court of this decision two months prior to trial.
The trial court denied the appellant's motion for summary judgment on the issue of liability.
The evidence adduced at trial indicated that in 1890 the Moundsville Electrical Company, a predecessor of the appellee, was granted a franchise to erect utility poles on the streets of the city.
At the end of the presentation of evidence at trial, the appellant moved for a directed verdict, but the motion was denied. The jury returned a verdict for the appellee. The appellant's motion for a new trial was denied.
The appellant assigns as error the trial court's failure to direct a verdict in her favor on the issue of liability. This assignment is based on the appellant's contention that she has an absolute right to the unobstructed use of a public road. 1 The appellee's utility pole, the appellant claims, was an obstruction within the meaning of W.Va.Code, 17-16-1 [1931], which provides in pertinent part:
Obstructions, within the meaning of this chapter, shall include ... pipelines, telegraph, telephone, trolley or other poles and wires connected therewith, constructed or erected on a public road in such a way as to interfere with the use thereof; or any other thing which will prevent the easy, safe and convenient use of such public road for public travel. Such obstructions shall be considered within the bounds of any state or county-district road whenever any part thereof shall occupy any part of the right of way provided by law or acquired for road purposes, not including the additional land acquired for slopes, cuts or fills.
Such obstructions so placed and left within the limits of such road are hereby declared to be public nuisances, ...
The appellee's pole occupied part of the right of way, as it was located about five feet from the edge of the road surface, and W.Va.Code, 17-1-3 [1963] states in pertinent part: "In the absence of any other mark or record, the center of the traveled way shall be taken as the center of the road and the right of way shall be designated therefrom an equal distance on each side, ..."
The issue is whether, as a matter of law, the appellee's utility pole constitutes an obstruction that prevents the "easy, safe and convenient use" of Jefferson Avenue Extension, the road on which the appellant was traveling when the accident occurred.
The appellant contends that W.Va.Code, 17-16-2 [1931] imposes a duty upon the appellee to remove and reset the utility pole. The relevant portion of Code, 17-16-2 states: "It shall be the duty of all telephone, telegraph, electric railway or other electrical companies to remove and reset telephone, telegraph, trolley and other poles and the wire connected therewith when the same constitute obstructions to the use of a state or county-district road by the traveling public." The record reflects that the pole at issue in this case was hit on two prior occasions, once in 1972, when it was replaced, but there is no evidence that a personal injury occurred. The other time was in 1983, when a truck backing out of a private drive, struck the pole and broke it. It was wooden at the time, and was replaced with a concrete pole, the same pole that the appellant struck. However, a district right-of-way administrator with the State Department of Highways testified at trial that although the pole was within the right-of-way, a complaint was never filed with the Department of Highways asserting that the pole was an obstruction. Therefore, the Department of Highways never took action to have the pole removed or reset pursuant to W.Va.Code, 17-16-1 2 or -2 [1931].
At trial, the appellant objected to an instruction offered by the appellee and given by the trial court which instructed the jury "that in order for an obstruction to be a public nuisance under the law, it must be such as will prevent the easy, safe and convenient use of the public road for public travel." 3
The trial court's instruction is in accord with well-established law in this jurisdiction. "In order for an obstruction to be a public nuisance under [ W.Va.Code, 17-16-1, as amended], it must be such as will prevent 'easy, safe and convenient use of such public road for public travel.' " Clay County Court v. Adams, 109 W.Va. 421, 429, 155 S.E. 174, 178 (1930). Moreover, "not all obstructions are nuisances per se." Daniels v. Cranberry Fuel Co., 111 W.Va. 484, 486, 163 S.E. 24, 25 (1932). See also Clay County Court v. Adams, supra, 109 W.Va. at 428, 155 S.E. at 177.
Obstructions within the meaning of W.Va.Code, 17-16-1, as amended, include utility poles erected on a public road in such a way that they interfere with the use of or prevent the easy, safe and convenient use of such public road for public travel. Utility poles erected in such a way are public nuisances within the contemplation of W.Va.Code, 17-16-1, as amended. Therefore, it is not error for a trial court to give an instruction stating that to be a public nuisance, a utility pole must be erected in such a way that it prevents the easy, safe and convenient use of a public road for public travel.
Accordingly, the trial court in this case did not err by giving an instruction stating that in order for the utility pole to be an obstruction, and in turn, a public nuisance, it must prevent the easy, safe and convenient use of a public road for public travel. The trial court was merely restating the statute pertaining to the issue. 4
The appellant argues before this Court that the appellee should have been held strictly liable for the placement of its utility pole. Supporting this contention, the appellant maintains that the trial court erred in not directing a verdict for the appellant and in refusing to give the pertinent part of an instruction which stated:
And if you find from a preponderance of the evidence in this case that the pole in question was within the right of way of the public road known as the Jefferson Avenue Extension then said pole is a public nuisance and if you further find from a...
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