Van Pelt v. Town of Clarksburg
| Decision Date | 05 June 1896 |
| Citation | 24 S.E. 878,42 W.Va. 218 |
| Parties | VAN PELT v. TOWN OF CLARKSBURG. |
| Court | West Virginia Supreme Court |
Submitted February 1, 1896
Syllabus by the Court.
1. A municipal corporation is not an insurer against accidents upon its streets and roads. Nor is every defect therein though it may cause the injury sued for, actionable. It is sufficient if the streets and roads are in a reasonably safe condition for travel in ordinary modes, with ordinary care and whether so or not is a practical question to be determined in each case by its particular circumstances.
2. While the liability of municipal corporations in such cases is in its nature absolute, that does not refer to the cause of action. That must exist before liability arises,--such cause as raises the liability.
3. Care in use of public roads enjoined.
Error to circuit court, Harrison county.
Action by Robert Van Pelt against the town of Clarksburg. Judgment for plaintiff. Defendant brings error. Reversed.
John Bassel, M. M. Thompson, and C. W. Lynch, for plaintiff in error.
E. G Smith, for defendant in error.
Robert Van Pelt obtained a judgment on a verdict for $600 against the town of Clarksburg, for injury received from a defect in one of its highways, and the town has sued out this writ of error. The injury was not received in one of the main streets, but in a turnpike road in the suburbs. There was a side ditch to drain the water from a hillside along this turnpike, and the town made a gutter to let the water from the ditch across the road. This road was much used in hauling coal from two coal banks into the town, and for other purposes; and winter weather and use had worn this gutter so that at a point it became, say, 16 to 18 inches deep, and 2 1/2 feet across, and might be called a "chuck hole." A good deal of water collected in it, and, at the time of this mishap, it was frozen over with ice. Van Pelt was hauling coal with a two-horse wagon from a coal bank into town. He passed over this gutter with empty wagon in going for a load to the coal bank, and did not break through the ice; but, returning with a load of coal, he sitting on a spring seat, the wagon broke through the ice, causing a jolt which threw Van Pelt to the ground, inflicting the injury for which he sued.
Taking the evidence of the plaintiff's side alone, we conclude that it does not show such a defect in the road as renders the town liable in this action. The gutter or waterway was a necessity in order to pass the water across the road. It was winter. Wagons had worn it some, and at one place made it deeper than elsewhere, so that it was a chuck hole; but, at worst, it was only about 18 inches deep, by no means worse than we find everywhere in the towns and counties of this state. Perhaps, in the bad weather, it had, within a few days, become a little deeper. The road was used by every one and was by no means impassable. No other accident happened there. No one hesitated for a moment to use the road because of this gutter, or that part of it which was worst. It was easily avoided in driving. Evidence on both sides clearly shows that, with ordinary care, there was no danger in crossing it.
A disposition is manifest to attribute every casualty occurring in travel on highways to defects in the highways, and mulct counties and towns in oppressive damages. This disposition grows. It has probably been inspired by a misapplication of language used in former decisions of this court, which is construed as defining what kind of defects give action rather than as defining the character of the liability when once an actionable defect exists. 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 be determined under all the circumstances, taking into consideration the physical structure, and nature of the country, its climate, and other things naturally pertinent to the matter. If this construction of the statute is not given, then our counties and towns must keep watchmen always on their streets and roads to discover every deterioration in them, from weather and wear, and instantly repair them at all seasons; in short, keep them in that high state of repair which would tax most of the counties and...
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