161 S.E. 37 | W. Va. | 1931
This is an action for damages for personal injuries to the plaintiff. At the conclusion of the introduction of the plaintiff's evidence, on motion of the defendant, the court struck out the plaintiff's evidence and directed a verdict for the defendant. Writ of error was awarded the plaintiff.
Defendant owns a building which fronts and binds on a public street of the city of Charleston. The apartments on the second floor of the building are reached by a stairway. The means of entrance to the stairs is a doorway in the front of the building at the street. The principal or "weather" door at this entrance swings on the inside. A screen door swings outward over the sidewalk. On the night of February 15, 1930, as plaintiff was walking past defendant's said building a man who had been visiting a tenant on the second floor and had descended the stairs and was just emerging from the building, pushed open the screen door which struck the plaintiff causing him to fall on the icy sidewalk with resultant serious injuries. This action for damages followed.
It is conceded that the question of negligence on the part of the defendant is not involved, but that the case must be determined on the queries, first, as to whether the defendant in keeping a screen door so as to swing over the public sidewalk for a part of its width was guilty of maintaining a public nuisance; and, second, as to whether the plaintiff was himself negligent. What constitutes a public nuisance is a question of law. 46 Corpus Juris, 812; Price v. Travis,
Predicating his position on the proposition that "the right of the public to the use of streets, highways, sidewalks, and like public ways, is subject to the reasonable use thereof by the abutting owners for purposes other than travel," the defendant says that the mere permitting of a screen door to swing out over a sidewalk for a part of its width is a reasonable use of the sidewalk and does not constitute a public nuisance, and that liability does not attach per se to the owner of the building for injury to a pedestrian caused by the door's striking him when swinging open. Among other authorities, he cites our case of Williams v. Coal Company,
We recognize and adhere to the principle already adverted to that the owner of property abutting a highway may make use thereof which is not consistent with the unimpeded use of the highway at all times by travelers whether on foot or in vehicle. Such use, however, must be reasonable, and above everything else, it must not involve a situation which savors of the characteristics of a trap, that is, there must not be employed any contrivance or instrumentality which may, in either a latent or an operating state, take by surprise and unawares a person using the highway and injure him. An instrumentality which in its normal operation may inflict serious injury on a pedestrian howsoever carefully he may be moving along the street is inherently dangerous and constitutes a menace to all persons using such public way. It is a public nuisance. The employment of such instrumentality is violative of fundamental principles of personal and property rights. It ignores the former and exaggerates the latter. What possible conception of property rights can justify a property owner in maintaining at the entrance of his building binding on a public street a door so hung on hinges that it must swing out when opened, and which may at any instant, *268 at the hands of an innocent user, be pushed into the face of a passing pedestrian? It may mar for life the countenance of a beautiful girl; it may cripple a little child; or it may hurl to the hard surface of the pavement an aged man and inflict grievous injury, as in this case. The law will not permit an owner of such instrumentality to stand free of responsibility for injury caused to another by such instrumentality, if the latter was free of negligence. Many decisions and texts sustain the principles underlying these statements. In the Irish Law Reports (1902, 1 I. R. 14) we find a case (Atty. Gen'l. v. MayoCounty Council et al.) which involved a proceeding for the removal of a little hut which some kind-hearted and well-meaning persons, with permission of the Mayo County Council, had erected for two very poor people upon a piece of waste ground on an unused portion of a public highway. In granting a mandatory injunction for removal of the structure, the learned Master of the Roles said: "The argument presented by counsel was, that if it be an obstruction it is inappreciable, on the ground that the absence of traffic renders it unimportant. If this were the test of its being inappreciable, very possibly the rule contended for by Mr. Clancy (of counsel for defense) might apply. But in my opinion no rule as to inappreciability applies except where the obstruction is temporary in its character, as where a man empties a load of turf on the wayside and then shortly afterwards comes and takes it away, or where it is so small in extent that it could not under any circumstances impede traffic."
In the English case of Barnes v. Ward, 9 C. B. 392, 137 English Reprints, 945, there was a claim for damages by a pedestrian who had fallen into an excavation made by the defendant on his own property adjoining a public way. In summing up, the court said: "The result is, — considering that the present case refers to a newly-made excavation adjoining an immemorial public way, which rendered the way unsafe to those who used it with ordinary care, — it appears to us after much consideration, that the defendant, in having made that excavation, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road; for, the danger thus created may *269 reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to a highway." In the later English case of Tarry v. Ashton, found in the Law Journal of 1876, at page 260, it appears that the plaintiff who was passing along a street was injured by the falling of a lamp which projected overhead from defendant's property. The court held "that it was the absolute duty of the defendant, as occupier of premises having a lamp in such a position, to prevent its becoming dangerous to the public; that if, in fact, it did become dangerous it was a nuisance, and for any injury caused by such nuisance defendant was liable; and that he could not shift the liability arising from such a duty from himself by having employed a competent person to do the necessary repairs."
The New York case of Holroyd v. Sheridan,
Further in said opinion, the court quotes applicably from 1 Thompson on Negligence, sec. 1199, as follows: "The owner of property abutting on a highway is under a positive duty to keep it from being a source of danger to the public by reason of any defect in structure, repair, use or management which reasonable care can guard against. Reasonable care must be exercised by such owners to keep their buildings safe, to the end that they do not fall in whole or in part, or that objects do not fall over them, injuring passers-by on the sidewalk or street; but such an owner is not a guarantor or an insurer of the absolute safety of the sidewalk, and proof of negligence on his part is necessary to charge him with liability for an injury received thereon."
In McCrorey v. Garrett,
In the Missouri case of Campbell v. City of Chillicothe, 144 S.W. 408, the city was held liable in damages for injuries sustained by a pedestrian by coming in contact with a privately owned gate which was standing open partly across the sidewalk on which the plaintiff was traveling. A door which swings open suddenly may easily be as great a menace to the safety of passers-by as a gate which stands open. The menace may be far greater; for example, if in daylight or on a well lighted street at night a door or gate is standing open, partly obstructing a sidewalk, a passer-by can see the obstruction and avoid it. The menace is less than if, seeing nothing to indicate danger, his progress is suddenly and abruptly interrupted by the unanticipated opening of a door — a blow to his person resulting.
In O'Hanlin v. Oil Company,
The defendant relies on the case of Post Adm'r. v. City ofClarksburg,
It does not appear from the record whether the trial court's action in striking out the plaintiff's evidence and directing a verdict for the defendant was predicated on the opinion that the defendant was not maintaining a public nuisance, or on the opinion that the plaintiff was guilty of negligence which was the proximate cause of his injury. We cannot sustain the ruling on either theory.
We reverse the judgment, set aside the verdict, and remand the case for a new trial.
Reversed and remanded. *273