91 W. Va. 482 | W. Va. | 1922
This suit was instituted to recover damages- for the alleged wrongful death of plaintiff’s decedent. The judgment below was in favor of' the- defendant, and the plaintiff prosecutes this writ of error.
There is no substantial controversy developed by the evidence as to any material fact involved in the case. The defendant was the owner of a house and lot situate on the east side of Marshall Street, in the city of Benwood. The front of the defendant’s lot was some four feet higher than the sidewalk abutting the same, and the elevation of the rear of the lot was still higher. In front of defendant’s lot, as well as in front of the adjoining lots, there was constructed a retaining wall. In front of defendant’s lot this wall was a little more than four feet in height. The face of the wall at its base was on the street line, but it slanted back so that the face of the top of -the wall was slightly back of the street line. The wall, it appears, was about two and one-half feet thick at the top. It appears also that the defendant’s lot for some two or three feet back of the wall was practically level, and from that point sloped up to his house. Some little, time before the accident, of which complaint is made, the defendant determined to build a porch on his house, and for this purpose purchased some lumber. This lumber consisted of four pieces four inches by six inches by sixteen feet long, and some smaller pieces two by four inches, as well as some inch boards. The lumber was piled either on top of the wall or. partly on top of the wall and on defendant’s lot back of the wall. The four larger pieces were laid longitudinally with the front.of the lot, two of them on the ground, and the other two on top of these. The smaller pieces of lumber were then thrown behind these four larger pieces. It is shown beyond question that this lumber would have remained in the position in which it was thus placed by the defendant indefinitely, unless interfered with by
It follows from what we have said that the defendant was guilty of no breach of duty toward the plaintiff’s decedent under the facts shown to exist in this case. But even if it could be said that the lumber was negligently piled, and there is no evidence to justify such an assumption, still it is clearly shown that the injury was caused by the interference therewith by an outside agency for which the defendant was in no manner responsible. Under the law, as announced in this jurisdiction, there could be no liability upon the defendant, and the jury could not properly have returned any other verdict than the one it did.
Some complaint is made of an instruction given on motion of the defendant upon the measure of damages. The instruction is clearly wrong and inapplicable to such a case as this, but inasmuch as there was no right to recover in any event, the giving of an incorrect instruction upon the measure of damages could not prejudice either of the parties to the suit.
The judgment complained of is affirmed.
Affirmed.