71 W. Va. 35 | W. Va. | 1912
Mary E. Michaelson sued the City of Charleston, and recovered judgment on a verdict for eight hundred dollars damages for personal injury from a fall on Smith street while walking on a rainy, dark December night, owing to some brick lying on the sidewalk.
A pile of brick, 20 or 30 feet long, 4 to 5 feet high, was on the edge of the pavement, leaving only a walking space of a yard between it and the brick wall of a house; and in this space, practically extending across it, in the middle of the pavement, were some dozen heavy brick in a pile or scattered over the pavement, and the plaintiff in the dark stumbled over them, fell and in trying to save herself clutched at the pile of brick, and shook more down from its top, falling on her arm. Whose brick, who piled them, is not shown.
The first assignment of error is that the court overruled the demurrer to the declaration. The brief of the city’s counsel points out that the declaration does not set out fully enough that the plaintiff was not negligent. Do we have to say again and give authority to show that the declaration need not negative contributory negligence, and that it is a matter of defence? Sheff v. Huntington, 16 W. Va. 307. We should not respond to this suggestion. The brief points out that the declaration does not set out fully enough the city’s duty as to the street. The law imposes a duty on a city to keep safe sidewalks free of obstruction, and it is not necessary to allege such duty, as it is never necessary in pleading to allege matter of law. Thomas v. Electric Co., 54 W. Va. 395.
Another point made by counsel is that a witness, Dr. Mayer, who examined the injured wrist of the plaintiff, stated that it was discolored and swollen and she needed medical attention. There can be nothing in this point. Dr. Mayer was a physician, though then retired; but any one, though not a physician, could give such evidence.
The brief makes the point that Mrs. Machaelson did not avail herself of proper medical treatment in proper time. There can be nothing in this. The murderer can not say that bad medical treatment contributed to death. To relieve from murder the wound must be mortal, and death must come from inde
The only question of import arises on the evidence as to whether the city is liable for the condition of the sidewalk. Mrs. Miehaelson as a witness was asked whether the pavement on which she was walking when she fell, was open to public travel, and answered “yes, when we could get through; yes sir, it was open to the public when we could go through there.” She was asked if it was used by the public, and answered, “Certainly, Smith and- Capitol streets aro as public streets as there is known. All the people come that way to the hotels.” Another witness, Cart, was asked if there vras a public sidewalk there, and answered “yes, sir.” It is beyond question that to hold a city liable for defect in its streets or sidewalks, it must be proven that it is a street or sidewalk constructed or recognized as such by the city authority. We have various decisions holding with Chapman v. Milton, 31 W. Va. 384, that “to hold a' city liable for defect the plaintiff must allege and prove that the street or sidewalk upon which the injury occurred, was, at the time and place-where the injury was sustained, controlled and treated by the town authorities as a public street or sidewalk and opened as such.”
In Talbott v. King, 32 W. Va., it is held: “Mere user of a road will not make it a public road under section 31, ch. 43, code of 1887. The user must be accompanied by an order of the county court recognizing it in some way as a road, or the road must be worked by a surveyor as such.” So in Dicken v. Liverpool, 41 W. Va. 511, and Hast v. Railroad Co., 52 W. Va. 396. This oral evidence of mere user not admissible. To prove the establishment or recognition of a street by council, its record must be produced. Johnson v. City, 16 W. Va. 402; Childrey v. Huntington, 34 W. Va. 457. It is true that the
Reverse the judgment set aside the verdict, grant new trial, and remand.
Reversed and Remanded.