80 W. Va. 178 | W. Va. | 1917
In an action of trespass on the case by Anna Johnson against the City of Huntington, for personal injuries sustained from an alleged defective and unsafe condition of one of its sidewalks, the circuit court overruled a demurrer to the declaration; and the propriety of that ruling has been duly certified to this court for determination, as allowed by §1, ch. 135, Code. Whether or not the pleading states a cause of action is the' sole question presented for consideration.
The declaration, consisting of one count, sufficiently avers the public character of the sidewalk, and the duty of defendant to keep it in good order and repair and free and safe “from dangers, hurts and injuries from projections, obstructions and structures maintained and hanging over, across and above it”. ’These averments are not assailed.
But the demurrer does challenge the sufficiency of that part of the declaration which attempts to assign an actionable breach of the duty averred, principally because of uncertainty in the allegations descriptive of the cause of injury. Plaintiff charges that on the day of the accident “there was being constructed bn the east side of Ninth street, and binding on the east side of the sidewalk aforesaid,, a certain building”, and' defendant then' and there negligently “allowed, permitted and caused to be built and erected and maintained a certain scaffold of plank and timbers” over and along the sidewalk for the purpose of protecting persons lawfully using the same from dangers and injuries incident to the construction of the building, and certain
The criticism directed against the last allegation is that neither the place from ivhich the piece of timber producing, the injury, nor the one immediately causing the negligent act averred, is definitely pointed out; it being contended that the city would in nowise be liable for the mere negligent act of a workman in permitting timber to fall from the building itself during the process of construction, if such was the fact, as well it may have been so far as the allegations of the declaration are concerned. For aught that appears, this indefiniteness may have been intentional on the part of the draftsman, on the theory that the city would be responsible in damages for injury resulting either from the defective condition of the scaffold or from the negligent casting of timber from the building into the street.
It must be assumed that in describing the source or cause of injury, the draftsman in preparing the pleading advisedly
Although by our statute upon a municipal corporation devolves an absolute liability for the defective maintenance of its public thoroughfares, it does not necessarily follow that a municipality is liable for injuries done by persons using its streets in a lawful and proper manner. If the injury is
Besides, not every obstruction, whether authorized or unauthorized by a municipality, constitutes a nuisance or is actionable in damages, irrespective of its character or purpose. “On the contrary, the right of the public to the free and unobstructed use "of the street or way is. subject to reasonable and necessary limitations and restrictions”. 3 Dillon on Mun. Corp. §1168. While the carriage and delivery of fuel, grain and goods, or the deposit of building material in 'a street, may effect a temporary impediment to the right of public transit or travel, they are legitimate uses of the highway, notwithstanding its primary purpose is for public use. The same result may arise from necessary improvements in the street itself, or the improvement of abutting lots by excavations for cellars and for the foundations of buildings, the erection of buildings, and similar private uses. These render necessary or unavoidable the occupation of parts of the streets and sidewalks; and such impediments do not necessarily constitute encroachments upon the public easement. They are merely incidents or limitations upon its- use. Because such improvements are necessary, the material required therefor, and scaffolds and other convenient instrumentalities, rightly may be placed in the street, if properly done and not unreasonably continued. But when occupied for these purposes, whether with or without the
The declaration, as contended, does not in express terms or by necessary implication point out the source from' which or the agency by which was produced the negligent causal act resulting injuriously to the plaintiff. As to these matters it is vague and indefinite. It .does charge that defendant “allowed, permitted and caused” the scaffold to be built and maintained in the sidewalk as a protection against injury to pedestrians; and that by reason of its negligent omissions as regards the safety of the sidewalk the beam or plank fell and injured the plaintiff. But the causal connection between the construction or maintenance of the scaffold and the falling of the timber at best is obscure. The allegation that defendant permitted and caused the erection of the scaffold, when coupled with other averments of the pleading, it may reasonably be assumed, means only that the city granted to the OAvner of the lot to be improved, or to his contractor for him, a permit therefor, and for this purpose to use so much of the sidewalk as reasonably was necessary to prosecute such work. If so, the permission does not warrant an implication that the city actually participated in the performance of that labor. The mere grant of such a permit clearly does not involve the liability of the municipality for the negligent exercise of the authority granted, or the negligence of workmen engaged in the construction of the building itself, unless it suffered the structure to remain upon the'pavement in such condition as actually to
But, as peculiarly applicable here, this court said in Post v. Clarksburg, 74 W. Va. 48, “the statute imposing absolute duty upon municipal corporations to keep their streets and sidewalks reasonably safe for use by the general public does not make them liable for injuries negligently inflicted by persons lawfully using such public ways upon one another”; and in the opinion at page 53, "clearly the statutory duty of a municipal corporation to keep its streets reasonably safe-for use, though absolute, does not extend to the prevention of persons lawfully using the streets from injuring one-another in the exercise of their rights”.
So that the facts averred in the declaration, devoid of precision as the allegations are, state a cause of action for which the owner of the building, or the contractor engaged-to construct it, exclusively or ultimately may be liable because of the injury of which plaintiff complains.
The reasons that we have assigned lead us to the conclusion that the demurrer to the declaration should have been sustained, with leave to plaintiff to amend so as to render the averments of that pleading more specific in the description of the cause of action on which she seeks recovery against the defendant; and such will be the order entered here, together with the award of costs against her.
Reversed, demurrer to declaration sustained, with leave to amend, and cause remanded.