Yeager v. City of Bluefield
| Decision Date | 06 April 1895 |
| Citation | 21 S.E. 752,40 W.Va. 484 |
| Parties | YEAGER v. CITY OF BLUEFIELD. |
| Court | West Virginia Supreme Court |
Submitted January 19, 1895
Syllabus by the Court.
1. A declaration, in case against a city for personal injury by reason of a defect in a street crossing, alleging that the plaintiff fell, and thereby was "greatly injured bruised, wounded, and crippled," is not bad because it does not state the particular injury, as a broken leg, for instance. Where special damages consequent on the particular injury are claimed, it seems otherwise.
2. Where the plaintiff's evidence appreciably tends to sustain the action, the court ought not to strike it out.
3. Under section 9, c. 131, Code 1891, when exception is taken to the action of the court upon a question involving evidence on a motion for a new trial or otherwise, all the evidence conflicting or not, may be certified, and this court must consider all such evidence, whether conflicting or not, not rejecting any from consideration. If, upon such evidence, the verdict plainly appears to be contrary to or without sufficient evidence, plainly against the decided and clear preponderance of evidence, it may be set aside, though the evidence be conflicting. This power should be exercised with great caution.
4. A municipal corporation is not an insurer against accidents upon streets and sidewalks. Nor is every defect therein though it may cause the injury sued for, actionable. It is sufficient if the streets are in a reasonably safe condition for travel in the ordinary modes, with ordinary care, by day or night; and whether so or no is a practical question to be determined in each case by its particular circumstances.
5. While the liability of municipal corporations is in its nature absolute, that does not refer to the cause of action. That must exist before the liability arises.
Error to circuit court, Mercer county.
Action by Theodore Yeager against the city of Bluefield. Plaintiff had judgment, and defendant brings error. Reversed.
Johnston & Hale, for plaintiff in error.
John M. McGrath, for defendant in error.
This was an action of trespass on the case in the circuit court of Mercer county by Theodore Yeager against the city of Bluefield to recover damages for the breaking of the plaintiff's leg, on the allegation that it resulted from defect in the crossing over one of the streets, in which there was a verdict for $3,500 and a judgment. The city brings the case here.
There is an objection to the declaration the point of the objection being that it is too general in its statement of the injury to the plaintiff's person,--the allegation being that by reason of his fall he "was greatly injured, bruised, wounded, and crippled, and put in great danger and peril,"--and that it should have alleged that his leg was broken. No authority is cited to sustain this point, but it seems to be relied upon with confidence. I think the declaration sufficient on this point. The plaintiff sues for a bodily injury. That is clearly alleged. That his leg was broken is only a fact evidentiary of the ultimate fact predicated; that is, that he was injured, bruised, wounded, and crippled. Pleadings need not state evidence, but only ultimate facts shown by the evidential facts,--the ultimate facts,--else there would be endless prolixity, as ultimate facts may include many subordinate or evidential facts. Often it is imprudent to allege such facts, as it produces variance. 1 Chit. Pl. 407. See Hawker v. Railroad Co., 15 W.Va. 635. If a man's wagon is broken by reason of a road's defects, he can charge that it was injured, broken, and rendered useless, without saying its axles and wheels were broken. I have found very little pointed law on the subject, common as the matter seems, and it is a matter not without practical importance. In Corey v. Bath, 35 N.H. 531, a case for personal injury from defect of a highway, the very point was maturely considered, and it was held that it was not necessary that the injuries received by the plaintiff should be particularly described in the declaration. It is enough if it shows that the plaintiff received a bodily injury. I have found nothing to the contrary. The rule contended for would condemn precedents long approved and everywhere used in assault and battery, which are of same nature as the declaration in such cases as this. Declarations for assault and battery allege that the defendant did beat, wound, and ill treat the defendant, without saying how he did beat him or wound him, without giving the mere manner of wounding. So with indictments for that offense. This is the rule where only general damages are claimed. Where special damages are claimed, it is different. For instance, if the plaintiff were engaged in any business requiring specially the use of the limb, and the injury unfitted him for that business, then the injury to that limb, I think, should be specified, as its result or consequence in the particular case would be loss of business. 1 Chit. Pl. 411, 412. At this point I notice a form in 2 Chit. Pl. 281, for placing rubbish in a street, overturning carriage, and injuring plaintiff, using only the general language that plaintiff "was greatly hurt, bruised, cut, and wounded, and sick and sore." It is a case just analogous to this.
Another ground of demurrer is that the declaration alleges that the crossing over the street was uneven, sidling, muddy, rocky, and slippery, and there was a deep mudhole in it, and the crossing in bad order and condition, and out of repair, and no proper crossing had been made, and the street founderous, and covered with mud and water; and the contention is that the plaintiff saw, or could have seen, the danger, and in crossing was guilty of contributory negligence. I do not concur in this point of demurrer. It was essential that the declaration charge these things to maintain the action, and so stating does not bar the plaintiff of his action. It does not state that plaintiff knew its bad condition. And, even if one knows a street is in bad condition, he need not stay indoors, and he need not refrain from crossing. It does not appear from the declaration that the defects were patent, and the danger obvious, so as to deter a prudent man from doing what everybody does,--pass along streets even though not in proper condition. This declaration states these matters as basis of defendant's negligence. It does not admit his own contributory negligence, and any inference that might be drawn of it he need not negative. Sheff v. Huntington, 16 W.Va. 307.
The next question of the case is whether the defendant is liable upon the facts. And that depends upon whether the crossing was defective within the meaning of the statute (section 53 c. 43, Code 1891), that "any person who sustains an injury by reason of a public road or bridge in a county, or by reason of a public road, bridge, street, sidewalk or alley in an incorporated city, village or town being out of repair may recover all damages sustained." When we are told, as in Chapman v. Milton, 31 W.Va. 384, 7 S.E. 22, and Gibson v. City of Huntington, 38 W.Va. 177, 18 S.E. 447, that the liability of cities and towns for injuries by reason of streets being out of repair is absolute, we must not be misled. It is meant that, when the basis or cause of the liability exists, that liability is absolute, in the sense that no want of notice or other excuse for the defect in the street will exonerate the town. But this idea of absoluteness does not refer at all to the cause of liability, but only to the liability when it exists. It does not mean that the state of the street must be perfect. Before imposing this absolute liability, we must first determine whether the street is out of repair in the sense of the statute. When is it so out of repair? Is it to be absolutely free from stones, mud, or inequalities, like the floor of your own home, or like the paths, walks, and drives in the...
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