Waggener v. Town Of Point Pleasant

• Decision Date: 12 December 1896
• Citation: 42 W.Va. 798,26 S.E. 352
• Parties: WAGGENER. v. TOWN OF POINT PLEASANT.
• Court: West Virginia Supreme Court

26 S.E. 352

42 W.Va. 798

WAGGENER.

v.TOWN OF POINT PLEASANT.

Supreme Court of Appeals of West Virginia.

Dec. 12, 1896.

Pleading — Demurrer — Defective Sidewalk — Liability of City.

1. A declaration which fails to state a sufficient cause of action against a municipality is demurrable.

2. The averment that a person, while passing over a public brick sidewalk in bad repair, rough, uneven, sideling, and slippery, caught his foot against a projecting brick, and fell down, injuring himself, does not state a sufficient cause of action, as such accidents are liable to occur with the old and feeble, careless and indifferent, at almost any place or time.

3. Municipalities are simply required to keep streets and sidewalks in a reasonably safe condition for persons traveling in the usual modes, by day and night, and exercising ordinary care.

(Syllabus by the Court.)

Error to circuit court, Mason county.

Action by C. B. Waggener against the town of Point Pleasant. Judgment for defendant. Plaintiff brings error. Affirmed.

W. R. Gunn, C. E. Hogg, H. R. Howard, and L. C. Somerville, for plaintiff in error.

Geo. Poffenbarger, for defendant in error.

DENT, J. C. B. Waggener filed his declaration against the town of Point Pleasant in the circuit court of Mason county. The defendant demurred thereto. The court sustained the demurrer, and the plaintiff, not wishing to amend, dismissed the suit The declaration contains four long counts, but as they are virtually and substantially the same, it is not deemed necessary to incumber the record with more than one of them. The first count is as follows, to wit: "State of West Virginia, County of Mason. In the Circuit Court Thereof. C. B. Waggener complains of the town of Point Pleasant, a municipal corporation, which has been duly summoned, &c, of a plea of trespass on the case, for this: that whereas, before and at the time of the committing of the wrongs, grievances, and injuries hereinafter mentioned, to wit, on the —— day of March, 1895, there was a common and public sidewalk on the east side of Water street, which is also known as 'Front Street, ' between First and Second streets, in the town of Point Pleasant, Mason county, West Virginia, and within the corporate limits of said town in said county, and which the defendant kept open and treated as a public sidewalk, over, on, and upon which said sidewalk all the citizens of this state, and all others, had the right to travel, pass, and repass, without hindrance or obstruction; and it was the duty of said defendant to put and keep said sidewalk in good repair; yet the said defendant, well knowing the premises, heretofore, to wit, on the day and year aforesaid, and for a long time previous thereto, at the town and county aforesaid, wrongfully and injuriously allowed and permitted said sidewalk to become and remain in bad condition, order, and repair, within the corporate limits of said town, in this: that the said defendant permitted a great number of the bricks of which said sidewalk was built to be torn up and carried away, and that other of said bricks were in the ground, with their tops projecting upward above the surrounding surface, and there was also a number of loose bricks partially imbedded in the ground, all of which made a very rough, uneven, and dangerous surface on said sidewalk, and allowed said sidewalk to be and remain uneven, sideling, muddy, rocky, and slippery at or near the southeastern corner of the Virginia House, and near the junction of said sidewalk with a common or public sidewalk on the north side of First street, and within the town and county aforesaid, and within the corporate limits aforesaid; and by means whereof, afterwards, to wit, on the day and year aforesaid, at the town and county aforesaid, and within the corporate limits aforesaid, the said plaintiff, C. B. Waggener, then lawfully going, traveling, and passing over, on, and upon said sidewalk first above mentioned, and on the rough, uneven, and dangerous surface aforesaid, caught one of his feet under the points of a projecting brick, whereby the said plaintiff, C. B. Waggener, was then and there violently thrown upon said sidewalk first above mentioned, and sustained a severe shock, and had his right breast and side severely bruised and injured, and sustainedsevere Internal injuries, and was lame, injured, sick, sore, and disabled for a long space of time, to wit, hitherto, and suffered great physical pain and mental anguish, and lost much time, to wit, hitherto, and incurred much expense in and about his endeavors to be cured of the said injuries; wherefore, and by means of the premises and wrongs, grievances, and injuries hereinbefore mentioned, the said plaintiff hath sustained damages to the amount of $500."

The ground of demurrer urged by counsel in their argument is that the declaration does not sufficiently allege "that the street or sidewalk upon which the injury occurred was, at the time and place where the injury was sustained, controlled and treated by the town authorities as a public street or sidewalk, and opened as such, " as held in the case of Chapman v. Milton, 31 W. Va. 385, 7 S. E. 22, and approved in Childrey v. City of Huntington, 34 W. Va. 457, 12 S. E. 530, and Phillips v. City of Huntington, 35 W. Va. 406, 14 S. E. 17. The declaration alleges that the place where, at the time when, the accident occurred, "was a common and public sidewalk on the east side of Water street, which is also known as 'Front Street, ' between First street and Second street, in the town of Point Pleasant, Mason county, West Virginia, and within the corporate limits of said town, in said county, and which the defendant kept open and treated as a public sidewalk, over and upon which said sidewalk all the citizens of this state, and all others, had the right to...