86 W. Va. 594 | W. Va. | 1920
This writ of error brings up for review a judgment of the circuit court of Marshall county setting aside the verdict of a jury rendered in an action for personal injuries received by the plaintiff on one of the streets of the defendant.
The plaintiff was at the time of the injury complained of a resident of the defendant, a municipal corporation, and on the day of the accident had occasion to go from her place of residence to a store situate on the north side of Eleventh street in said city, the plaintiff’s residence being south of Eleventh street, so that it was necessary, in order to reach her destination, to cross this street. It appears that the north half of Eleventh street has been paved by the, city authorities, and that a sidewalk has been laid on the north side of said street, the south half of said street remaining unimproved, and without a sidewalk being laid on that side thereof. The plaintiff in going from her home to her destination, when she reached Eleventh street, proceeded along the south side thereof, on which there was no sidewalk, to a point at which an alley intersects with said street, at which point she crossed Eleventh street to the, north
The principal contention of the defendant is that inasmuch as this catch basin was in a part of Eleventh street which was not improved, and not designed by it for public travel, it was under no duty to keep the same safe for such travel. The defendant’s contention in effect is that when the plaintiff got off the paved street, or off the sidewalk provided on the north side of the street, she was virtually a trespasser. It is shown that she might have crossed Eleventh street at another point and reached the sidewalk on the north side. It is also shown that many people crossed at the mouth of the alley where the plaintiff crossed, and that there was a well-defined path on the south side of Eleventh street and across the same at the mouth of this alley, which had been used by the, inhabitants living south of that street in going to points north thereof. It also appears that the alley running into Eleventh street, at the point of the accident, is a public alley, and in fact the, street commissioner testified that he drove over this place just a few days before the accident, and observed nothing wrong.
It is undoubtedly true that a municipal corporation has some discretion as to what improvements shall be made to its streets in the way of paving and laying sidewalks therein, and it may be said that ordinarily the authorities of such corporation may
There is another ground upon which the plaintiff here is clearly entitled to recover, and that is that this dangerous pitfall was located at the edge of the street, almost in the mouth of the public alley above referred to. Admittedly it is necessary for those desiring to use this public alley to- also use, some part of the unimproved street, and to go in close proximity to, if not to pass directly over, the covered catch basin into which the plaintiff fell. In Townley v. City of Huntington, 68 W. Va. 574, this Court held that the¡ duty of a municipal corporation to keep the streets and public ways ordinarily safe for travel extends not only to the parts actually used, but to those parts so near thereto as that travelers might come in contact with obstructions therein because of their close proximity to such traveled way by slight deviation therefrom, and this doctrine is well sustained by the authorities.
There is no dispute in this case as to the material facts set up as a basis for recovery.' The only .conflict in the evidence was as to the extent of the, plaintiff's injury. Admittedly the defendant constructed this catch basin in the street, covered it over with boards, and then placed dirt upon top of these boards in such a way that the inhabitants of said town having occasion to use the place for several years prior to the accident to plaintiff knew nothing of the existence of this catch basin. The fact that it was necessary to go within very close proximity to it, if not directly over it, in passing from the public alley above referred to to the improved part of Eleventh street is undisputed.
It is contended that two instructions given for the plaintiff do
It follows from what we have said that the judgment of the circuit court will be reversed, the verdict of the jury reinstated, and judgment rendered thereon.
Reversed; judgment for plaintiff.