145 W. Va. 455 | W. Va. | 1960
Lead Opinion
In this action of trespass on the case, plaintiff, Mad-alyn Costello, seeks to recover for personal injuries sustained when she fell on a sidewalk abutting Market Street in the City of Wheeling, West Yirgina. The defendants are the City of Wheeling, The First National Bank & Trust Company, as Trustee for the beneficial owners of the McLain Building in front of which the fall occurred, and Simon Penn and Lillian Penn, doing business as Penn Jewelers, the lessee of a ground floor storeroom of the McLain Building, in front of whose shop the fall occurred. The concrete sidewalk at the point of the accident was approximately 12' in width and runs in a general north-south direction, ascending to the south, the rate of ascent
At the conclusion of the testimony in behalf of the plaintiff, the court sustained a motion in behalf of the defendants, and directed a verdict against the plaintiff, and in favor of all of the defendants. A motion to set aside such verdict was overruled and judgment was entered thereon, all of which actions are assigned as error in this Court.
Under the provisions of Code, 17-10-17, a municipal corporation has an absolute liability for an injury resulting from its streets, sidewalks and alleys being out of repair, if required by its charter to keep them in repair, even though such municipal corporation had no notice of such fact at the time of the injury resulting from such condition. Therefore, assuming such
Upon this finding, that the sidewalk was not “out of repair”, we affirm also the action of the trial court in directing the jury to return a verdict for the defendant, the First National Bank and Trust Company, a corporation, Trustee, etc., the owner of the building, inasmuch as there was therefore no violation of any duty imposed by ordinance upon this defendant, or any evidence as to any other act of negligence.
The trial court twice heard arguments and considered briefs by counsel upon the question of the liability of the tenant, Penn, and wrote two informative memoranda opinions on the question. The cases from other jurisdictions involving actions for damages by persons injured from falls on terrazzo surfaces are in conflict. However, to place so many in one category and so many in another would not be quite accurate, for the facts must be carefully looked to in each ease in ascertaining the reason for the decision of the Court. Without further comment some of those cases are here cited: Charles v. Commonwealth Motors, 195 Va. 576, 79 S. E. 2d 594; DeWeese v. J. C. Penny Co. (Utah), 297 P. 2d 898; Erickson v. Walgreen Drug Co. (Utah), 232 P. 2d 210, 31 A.L.R. 2d 177; Grant Co. v.
In Spears v. Goldberg, 122 W. Va. 514, 11 S. E. 2d 532, the plaintiff instituted a personal injury action for injuries received in a fall on a terrazzo incline at or near the entrance to the defendant’s store. In her declaration, the plaintiff did not allege negligence, but alleged that: “the terrazzo entrance ways were ‘highly polished, and extremely slippery when wet,’ and in rainy or damp weather constituted a nuisance.” The trial court directed a verdict for the defendant, but the judgment was reversed by this Court upon the ground that the plaintiff’s evidence was sufficient to present an issue of fact to the jury for its determination. In the dissenting opinion by Judge Kenna, he said: “* * * It may be that here a recovery on the basis of negligence on the part of the tenant in not exercising due care to provide a reasonably safe entrance in wet weather for invitees who were its prospective customers would be justified if pleaded. * * In the majority opinion, the testimony of a civil engineer to the effect that terrazzo, when properly constructed with sufficient abrasive, is not slippery when wet was noted, and the Court observed that from this testimony “and from other evidence” the jury would have been justified in finding that the terrazzo when wet was slippery because of an inherent defect in construction.
In this jurisdiction, violation of a statute or ordinance is prima facie evidence of negligence. Barniak v. Grossman, 141 W. Va. 760, 93 S. E. 2d 49; Morris
For the reasons herein stated, the judgment of the Circuit Court of Ohio County upon the directed jury verdict for the defendants, City of "Wheeling and the First National Bank and Trust Company, a corporation, Trustee, etc., is affirmed; the judgment upon the jury verdict for the defendant, Penn is reversed; and the case is remanded for a new trial.
Affirmed in part; reversed in part; and remanded.
Dissenting Opinion
dissenting:
Though I concur in the decision of the majority in affirming the judgment of the circuit court for the defendants, the City of Wheeling and The First National Bank and Trust Company, Trustee, upon the directed verdict in favor of all the defendants, I emphatically disagree with its action in reversing the judgment of the circuit court for the defendants, Simon Penn and Lillian Penn, upon the directed verdict in their favor, in setting aside that verdict and in remanding the case to that court for a new trial as to those defendants. As in my opinion the judgment of the circuit court in favor of all the defendants was in all respects correct and proper, I dissent from the decision of the majority with respect to its reversal of the judgment in favor of the defendants Simon Penn and Lillian Penn, for the reason that if, upon the facts established by the evidence, the City of Wheeling is not liable, the Penns are likewise not liable, for the personal injury sustained by the plaintiff, Madalyn J. Costello, resulting from her fall upon the sidewalk which though originally constructed by the Penns was, at the time of her injury, under the control of the city.
As pointed out in the majority opinion a municipal corporation, by virtue of Section 17, Article 10, Chapter 17, Code, 1931, as amended, is subject to absolute liability to any person for injury to his person or his property caused by any of its streets, sidewalks or alleys being out of repair if it is required by its charter to keep such streets, sidewalks or alleys in repair. That section contains these provisions: “Any person who sustains an injury to his person or property by reason of any road or bridge under the control of the county court or any street or sidewalk or alley in any incorporated city, town or village, being out of repair may recover all damages sustained by him by reason of such injury, in an action against the county court, city, town or village in which such road, bridge, street, sidewalk or alley may be, except that such city, town
Under the foregoing statute this Court, in numerous cases, has held that the duty of the city to maintain its streets, sidewalks and alleys in suitable repair for travel in the ordinary mode by day and by night is an absolute duty, and that in order to justify a recovery it is not necessary to establish either notice of the defect or negligence on the part of the city. Roth v. City of Moundsville, 118 W. Va. 283, 190 S. E. 332; Morris v. The City of Wheeling, 140 W. Va. 78, 82 S. E. 2d 536; Burcham v. City of Mullens, 139 W. Va. 399, 83 S. E. 2d 505; Rich v. Rosenshine, 131 W. Va. 30, 45 S. E. 2d 499; Burdick v. City of Huntington, 133 W. Va. 724, 57 S. E. 2d 885; Hayes v. The Town of Cedar Grove, 128 W. Va. 590, 37 S. E. 2d 450; Taylor v. City of Huntington, 126 W. Va. 732, 30 S. E. 2d 14; Thompson v. City of Charleston, 118 W. Va. 391, 191 S. E. 547; Patton v. City of Grafton, 116 W. Va. 311, 180 S. E. 267; Blankenship v. The City of Williamson, 101 W. Va. 199, 131 S. E. 492; Carder v. City of Clarksburg, 100 W. Va. 605, 130 S. E. 349; Williams v. Main Island Creek Coal Company, 83 W. Va. 464, 98 S. E. 511; Johnson v. City of Huntington, 82 W. Va. 458, 95 S. E. 1044; Boyland v. City of Parkersburg, 78 W. Va. 749, 90 S. E. 347; Stanton v. The City of Parkersburg, 66 W. Va. 393, 66 S. E. 514; Campbell v. City of Elkins, 58 W. Va. 308, 52 S. E. 220, 2 L.R.A., N. S., 159; Parrish v. City of Huntington, 57 W. Va. 286, 50 S. E. 416; Arthur v. The City of Charleston, 51 W. Va. 132, 41 S. E. 171; Waggener v. Town of Point Pleasant, 42 W. Va. 798, 26 S. E. 352; Yeager v. City of Bluefield, 40 W. Va. 484, 21 S. E. 752; Gibson v. City of Huntington, 38 W. Va. 177, 18 S. E. 447, 45 Am. St. Rep. 853, 22 L.R.A. 561; Chapman v. Milton, 31 W. Va. 384, 7 S. E. 22; Wilson v. City of Wheeling, 19 W. Va.
This Court has likewise said that a municipality is not an insurer against accidents upon streets and sidewalks and that every defect in such streets or sidewalks, though it may cause the injury for which a recovery is sought, is not actionable. Thompson v. City of Charleston, 118 W. Va. 391, 191 S. E. 547; Holsberry v. City of Elkins, 86 W. Va. 487, 103 S. E. 271; Parrish v. City of Huntington, 57 W. Va. 286, 50 S. E. 416; Waggoner v. Town of Point Pleasant, 42 W. Va. 798, 26 S. E. 352; Van Pelt v. Town of Clarksburg, 42 W. Va. 218, 24 S. E. 878; Yeager v. City of Bluefield, 40 W. Va. 484, 21 S. E. 752; Wilson v. City of Wheeling, 19 W. Va. 323, 42 Am. Rep. 780. See also Morris v. The City of Wheeling, 140 W. Va. 78, 82 S. E. 2d 536; Burcham v. City of Mullens, 139 W. Va. 399, 83 S. E. 2d 505; Smith v. The City of Bluefield, 132 W. Va. 38, 55 S. E. 2d 392.
Though the statute imposes absolute liability upon a municipality for an injury sustained hy reason of its failure to keep its ^streets or sidewalks in repair, a municipality is likewise liable for an injury, received hy a person observing due care for his safety, as the combined result of an accident and the negligence of the city, although the accident is the primary cause of the injury, where the injury would not have occurred hut for such negligence, and the consequences of its negligence could, with common prudence and sagacity, have been foreseen and provided against hy the city. Blankenship v. The City of Williamson, 101 W. Va. 199, 132 S. E. 492. See also Williams v. Main Island Creek Coal Company, 83 W. Va. 464, 98 S. E. 511; Rohrbough v. Barbour County Court, 39 W. Va. 472, 20 S. E. 565, 45 Am. St. Rep. 925.
The rule is well established.by the decisions of this Court, as stated in the majority opinion, that the violation of a statute or an ordinance is prima facie negligence when it is the proximate cause of an injury. Barniak v. Grossman, 141 W. Va. 760, 93 S. E. 2d 49; Morris v. The City of Wheeling, 140 W. Va. 78, 82 S. E. 2d 536; Moore v. Skyline Cab, Inc., 134 W. Va. 121, 59 S. E. 2d 437; Rich v. Rosenshine, 131 W. Va. 30, 45 S. E. 2d 499; Skaff v. Dodd, 130 W. Va. 540, 44 S. E. 2d 621; Scott v. Hoosier Engineering Company, 117 W. Va. 395, 185 S. E. 553; Oldfield v. Woodall, 113 W. Va. 35, 166 S. E. 691; Tarr v. Keller Lumber and Construction Company, 106 W. Va. 99, 144 S. E. 881, 60 A.L.R. 570; Bobbs v. Morgantown Press Company, 89 W. Va. 206, 108 S. E. 879; Mangus v. Proctor-Eagle Coal Company, 87 W. Va. 718, 105 S. E. 909; Norman v. Virginia-Pocahontas Coal Company, 68 W. Va. 405, 69 S. E. 857, 31 L.R.A., N.S., 504. As the construction of the sidewalk, however, according to the undisputed evidence, was not the proximate cause of the injury to the plaintiff, the question of negligence of the Penns in violating the ordinances was a question of law for the court and not a question of fact for the jury, and the circuit court was correct in not submitting that issue to the jury.
When the evidence is conflicting on the question of proximate cause that question is a question of fact
For the reasons stated, I would affirm the judgment of the circuit court in favor of the defendants Simon Penn and Lillian Penn in holding that, as a matter of law, they were not guilty of negligence which was the proximate cause of the injury sustained by the plaintiff.