Williams v. Main Island Creek Coal Co..

• Decision Date: 25 February 1919
• Docket Number: No. 3642.,3642.
• Citation: 83 W.Va. 464
• Parties: A. A. Williams v. Main Island Creek Coal Co. et al.
• Court: West Virginia Supreme Court

83 W.Va. 464

A. A. Williams

v.Main Island Creek Coal Co. et al.

No. 3642.

Supreme Court of Appeals of West Virginia.

Submitted February 18, 1919.

Decided February 25, 1919.

1. Evidence Best Evidence Establishment and Maintenance of Public Roads.

Record evidence of action taken by a county court or other governmental agency empowered to control the establishment and maintenance of public roads, streets and alleys, and showing the establishment of such highway or its official recognition by the appointment of road supervisors who have repaired and improved it, is the best evidence of the fact, and, as a general rule, ought to be produced or its absence accounted for, (p. 467).

2. Highways "Public Road" User Statute.

Mere user of a way or road by the public for travel will not suffice to make it a public road within the meaning of section 56a (10), ch. 43, Code 1913, but such user accompanied by some official recognition by the county court, as by work done on it by a supervisor acting by appointment of that tribunal, does come within the intendment of the statute. (p. 468).

3. Same Selection of Dangerous Way Assumption of RisK.

A traveler having two reasonably convenient ways for his journey, one of which is dangerous and the other not, assumes the risk of injury if he uses the dangerous way, and connot recover for any injury he may thereby sustain. (p. 468).

4. Same Dangers Question for Jury.

The comparative availability, convenience, freedom from dangerous defects, and safety for travel as between two or more highways are generally questions for the jury to determine. (p. 468).

5. Same Injury from Defect in Street Liability.

Sections 56a (49) and 56a (50), ch. 43, Code 1913, impose upon a county court, incorporated city, town or village absolute liability for injuries occasioned to travelers by defects in a public road or street. (p. 470).

6. Same.

The only limitations upon such liability, other than that noted above where there are available two reasonably convenient ways, are where the negligence of the plaintiff is the direct or proximate cause of the injury, or where the defect or obstruction is only a remote cause thereof. (p. 470).

7. Same Defect Injury to Travel Liability of County Court.

While the liability of county courts is in its nature absolute, a cause of action must exist before a liability arises, (p. 470).

8. Same Injury from Defect Contributory Negligence.

If a traveler negligently fails to exercise ordinary care and caution for his own safety against defects in a public highway which he knows or can readily see are dangerous, and has the opportunity to avoid them, he is not entitled to damages, but must bear the burden of his own indiscretion, (p. 470).

9. Same Defect Personal Injur y Liability Defense Question, for Jury.

Ordinarily such questions of liability and defense in an action based upon an injury due to an alleged defect in a public highway should be submitted to the jury as the triers of fact. Only where the facts are undisputed or clearly established by the evidence do they become questions of law for the court, (p. 471).

10. Same "Out of Repair" Statute.

A public road is defective and "out of repair" within the meaning of sections 56a (49) and 56a (50), ch. 43, Code 1913, when it becomes unsafe for reasonable use in the ordinary modes of travel, and includes obstructions to the highway as well as defects therein, without regard to the manner in which or the per-, sons by whom such obstructions were placed therein, (p. 471).

11. Same Obstruction Nuisance Action for Damages.

But not every obstruction to the free and unrestricted use of a public road or street, even if unauthorized by the proper authorities, constitutes a nuisance or is actionable in damages. The right of the public to the free and unobstructed use of a highway or street is subject to reasonable and necessary limitations and restrictions. (p. 471).

12. Same Obstruction Excuse Liability.

Temporary obstructions for some purposes frequently are un avoidable. But this necessity cannot operate to excuse careless or indifferent disregard of the rights of travelers, or justify the leaving of the street in an unsafe and dangerous condition, (p. 471).

13. Same County Roads Failure to Remove Obstruction Secondary Liability Primary Liability.

Where by the mere omission of the county court to act promptly in causing the removal of an obstruction placed by another in a county road under its control, from which arises a cause of action for which both are jointly and severally responsible, the county court being the passive or permissive agent and the obstructor the active agent, the former, though liable, is only secondary so, while the latter is primarily liable, and in. any event must finally respond to the injury suffered because of the obstruction. (p. 471).

Error to Circuit Court, Logan County.

Action by A. A. Williams against the Main Island Creek Coal Company, the County Court of Logan County, and others. Verdict and judgment for defendants, and plaintiff brings error.

Reversed and remanded.

Greene & hogsett, for plaintiff in error.

J. B. Wilkinson, England, hager & Davis, Butts & Minter and Chafin & Bland, for defendants in error.

Lynch, Judge:

Denied the right to submit to a jury upon the proof introduced the question of defendant's liability for a personal injury caused by the skidding and upsetting of an automobile driven by him. over and along the public road between Logan and Omar, and complaining of a nil capiat judgment upon the exclusion of the proof and a directed verdict, the plaintiff prosecutes this writ to reverse the action taken in these respects.

The defendants here and below are the county court of Logan County and the Main Island Creek Coal Company, a corporation, and its agents and employes. The sufficiency of the declaration was not challenged by demurrer. The negligence charged against the county court is its failure to exercise the diligence required by law to keep and maintain the road in good condition for public travel, and permitting the road to be obstructed by its codefendant, thereby endangering the lives and property of persons lawfully upon it. The negligence charged against the Main Island Creek Coal Company, its servants and agents is the obstruction of the road by the erection and maintenance thereon of a scaffold built out of heavy timbers along and about and attached to a building in process of construction by the defendant company at the time of the injury, and the projection of the scaffold into the road to the extent of about three feet, leaving for public use only from six to eight feet of level space between the structure and the steep bank of Main Island Creek at the point of injury, the bank over which the automobile skidded and upset early one morning when the plaintiff attempted to.pass the scaffold in his car.

The proof introduced to show the public character of the road was deemed insufficient to establish that fact. It consists, among other testimony, of that of two surveyors or supervisors, who by appointment of the county court had charge and control of the precinct or district in which the road is located, and under whose direction it was kept in reasonably fair condition for an ordinary country roadway leading from the county seat to and through a rural mining community. Viewers acting or assuming to act under an appointment of the county court, according to the testimony of at least one witness, inspected the road with the view of repairing the injury done to it by a washout occasioned by a freshet in Main Island Creek several years before the accident suffered by plaintiff. The road, as said by many witnesses acquainted with and traveling over and along it, had existed and the public had recognized it for years as a thorofare devoted to general travel without question as to the purpose to which it apparently was devoted.

Plaintiff introduced no record evidence emanating from the minutes of the county court procedings for the purpose of showing official recognition of the roadway or appointment of the road supervisors who testified to the facts already stated. If it be true that such authorization appears, the record is the best evidence of the fact and ought to be produced or its absence accounted for, as a general rule. Ordinarily such evidence would remove all doubt and uncertainty in respect of a matter of so vital importance in regard to the establishment and maintenance of city, county, state and national highways.

To avoid the difficulty presented in this case may have had some influence upon judicial tribunals in holding sufficient for the establishment of a highway recognition of its existence by the proper governmental agency, as by preparing or repairing it for the use of the public, and its general use as a highway. But whatever the inducement, our decisions, often repeated, say such recognition and use are of themselves sufficient to show the way used and improved to have all the essential characteristics of a thorofare devoted to public use, and to require the county court to respond in damages for injury caused by defects therein due to its negligence.

Besides, under the statute in force at the time of the injury sustained by plaintiff, section 56a (10), ch. 43, Code 1913, "every road * * used and occupied as a public road * * shall in all courts and places be taken and deemed to be a public road * * whenever the establishment thereof as such may come in question." Though broad in its terms, this provision was construed in Talbott v. King, 32 W. Va. 6, as not actually meaning that mere user of a way for travel will suffice to make it a public road under this section, but that such user accompanied by some official recognition by the county court, as by work done on it by a surveyor or supervisor acting by appointment of that tribunal, does come within the intendment of the statute. Ball v. Cox, 29 W. Va. 407; Campbell v. Elkins, 58 W. Va. 308; Burke v....