33 W. Va. 548 | W. Va. | 1890
"Writ of error to a judgment of the Circuit Court of Taylor county, pronounced August 3, 1889, in an action brought in said court by Adeline M. Hesser against the town of Grafton to recover damages for injuries alleged to have been sustained by reason of the negligence of the defendant in failing to keep in repair a certain sidewalk and street within its corporate limits. The case was tried by jury on the issue of not guilty and verdict and judgment rendered in favor of the plaintiff for $920.00. The defendant took certain exceptions to the action and judgment of the court, and to review the errors alleged therein it obtained this writ of error.
In Garrity v. Haley, 29 W. Va. 98, this Court held: “Where negligence is the ground of an action, it rests upon the plaintiff to trace the fault for his injury to the defendant, and for this purpose he must show the circumstances, under which the injury occurred; and if from these circumstances, so proven by the plaintifl, it appears that the fault was mutual, or in other words, that contributory negligence is fairly imputable to him, he has by proving the circumstances disproved his right to recover, and on the plaintiff’s evidence alone the jury should find for the defendant.” And it was further decided in that case, that where the plaintiff’s evidence proves such facts and circumstances as to show that he was guilty of contributory negligence, the court ought on the motion of. the defendant to exclude from the jury all the plaintiff’s evidence.
It seems to me, that according to these principles which we regard as the settled law of this State, the Circuit Court pilainly erred in not sustaining the defendant’s motion to ex-
There was no beacon or danger light on this street to warn persons using it of the obstructions, and therefore if injury had been caused thereby to any one using the street without knowledge of its obstructed and dangerous condition the defendant would be liable for such injury. But in respect to the plaintiff here such beacon or danger signal would have given her no knowledge which she did not already possess. She testified that she had passed over the street daily — that she had passed over it the very morning of the night on which she was injured; that she saw and knew its dangerous and almost impassable condition. The law does not require the authorities of a municipality to inform those using its streets of what is apparent to their senses or of which they already possess all the knowledge such information would give them. The knowledge of the plaintiff’ here excuses the omission of the defendant, or those for whose acts it is responsible, in not placing danger signals or lights along the sidewalk and street. As to the plaintiff’ the defendant’s responsibility is just the same as it would have been if it had put out such signals or lights. While therefore we regard the defendant in some degree negligent in respect to this street and sidewalk, it is still not liable to the plaintiff',
It would be difficult to conceive of a case of more reckless conduct than that of the plaintiff in this case. An aged woman, with full knowledge of the obstructed and dangerous condition of this sidewalk and street, attempts to pass over it on a dark and raining night, when it is so dark that she can not seethe obstructions or even the rockoVer which she fell, without even a lantern or light of any kind, notwithstanding she knew such light was necessary and had on all former occasions used a lantern in passing over this street at night. It seems to me that no reasonable person would have attempted to act as she did, and that her conduct in doing so was not only gross but culpable negligence. It is true she says, she did not in the morning see the particular rock over which she fell, and that she supposed the middle of the street was unobstructed, but she knew that the builders were necessarily shifting and moving the material they were putting into the buildings, and therefore had no just reason to presume the position of the materials and the situation of the obstructions would not be changed during the day; and moreover‘it was her duty to know that the middle of the street was not the place for foot travelers to pass over. Upon the facts shown b^' her own evidence, I am clearly of opinion that the plaintiff was guilty of contributory negligence and that the court should have sustained the motion of the defendant to exclude said evidence from the jury.
This conclusion virtually disposes of the case and renders any consideration of the errors assigned unimportant. It may not, however, be improper to say that according to the principles decided by this Court in Chapman v. Milton, 31 W. Va. 384, and Riggs v. Huntington, 32 W. Va. 55, we do not think the court erred in refusing to give to the jury the instructions requested by the defendant. For the reasons aforesaid I am of the opinion the judgment of the Circuit Court must be reversed, the verdict of the jury set aside, and
Reversed. RemaNded.