92 W. Va. 490 | W. Va. | 1922
Plaintiff, a boy nine years of age, in an action for personal injuries received by falling through a public bridge while
Before considering the assignment of error it is necessary to review the facts. On August 25, 1919, defendant was repairing a certain public bridge, 'part of the Glenville and Spencer road, which bridge spans Spring Creek, near to biit outside the town of Spencer. Defendant had put up a barrier across each end of the bridge, so as to prevent vehicles and animals from crossing the bridge, but the barriers were sufficiently high that footman, by stooping, could and did go under them and pass over the bridge while the repairs were being made. A number of footmen were so using the bridge the day the accident occurred. The bridge is 197 feet long. The day of the accident, about midway of the bridge, the workmen had taken up a section of the flooring’ from twelve to sixteen feet in length and extending across- the width of the bridge, leaving exposed in the space from which the flooring had been taken the beams, which were three inches thick, placed eighteen inches apart, and running lengthwise the bridge. Plaintiff, in company with his sister Eunice Parsons, a girl about thirteen, and Dan Tanner, a boy about fourteen years of age, was crossing the bridge, carrying a basket of produce for market in -Spencer. "While walking on one of these beams, holding his basket with one hand and the bridge railing with the other, some workmen dropped! a heavy piece of timber on the bridge, jarring loose Ms hold on the railing and he fell through the open space to the. ground, about twenty feet below, sustaining a broken arm and other injuries. The injury to the arm is permanent. He had approached the bridge from what is known as the ‘‘ Calhoun” end. About 132 feet east of that end there was a path which led from the road down a grade to a temporary crossing over Spring-Creek. This temporary crossing consisted of two planks provided for persons desiring to cross the creek while the bridge
The defense relies iipon three grounds:
1. That under the statute, county courts are not liable to any person who sustains an injury to his person or property by reason of a public road being out of repair, where the place of injury on such public road is outside an incorporated city, town or village.
2. That at the time of the injury in this case, the bridge was not open for public travel, and the statutory liability, if any, was suspended during the time the bridge was closed! for necessary repairs.
3. That plaintiff was guilty of contributory negligence.
Referring to the first or rpain ground, our attention is directed to the law making county courts, cities, towns and villages liable for such injuries as it stood prior to the enactment of section 49, chapter 52, Acts of the Legislature, 1909, and to the changes made by that statute. The statute originally was:
“Any person who sustains an injury to his person or property by reason of a public road, or bridge, in a county, or by reason of a public road, bridge, street, sidewalk or alley in an incorporated city, village or town, being out of repair, may recover all damages sustained by him by reason of such injury, in an action on the case in any court of competent jurisdiction, against the county court, city, village or town in which such road, bridge, street, sid'ewalk or alley may be, except that such city, village or town shall not be subject to such action, unless it is required by its charter to keep the road, bridge, street, sidewalk or alley therein, at the place where such injury is sustained, in repair. If it is not so required, the action and remedy shall be against the county court.” Chapter 43, section 53, Code 1906.
The statute was amended in 1909, section 49, chapter 52, so as to read: “Any person who sustains an injury to his person or property by reason of a public road, bridge, street, sidewalk or alley in an incorporated city, town or village being out of repair, may recover all damages sustained by him by
Now we find that after this court had in effect said that
Defendant’s second objection to the verdict is that the bridge was not, within the meaning of the statute, open to public travel, and that during the period it was being repaired, defendant’s statutory liability was suspended. But the record shows it was open for footmen. Many others besides plaintiff used it while the repair work was being done. The record shows that the superintendent in charge of the work on one occasion assisted some ladies in crossing the bridge, after the barriers had been put up. But if closed, it was not closed as the statute, ch. 66, sec. 90, Acts 1917, directed. No notices stating the necessity of closing it nor describing the part closed, were posted as there directed. No such notice was posted at the point of the road where the path led to the temporary crossing, nor was there any barrier placed there. By reason of this failure and the fact that the court permitted the bridge to be used by footmen in crossing, we can not say as a matter of law it was not open to travel, and this defense is not available. Wilson v. City of Wheeling, 19 W. Va. 323.
But as a third ground, defendant’s counsel say plaintiff, as a matter of law, was guilty of contributory negligence. We
It therefore follows that for the above reasons the court erred in sustaining defendant’s demurrer to the evidence and dismissing the ease.
But plaintiff also moved the court to set aside the verdict because it was inadequate. Under the former decisions of this court we can not set aside the verdict, though we have no doubt his arm is permanently injured and he ought to have a verdict for a greater amount. In Kennedy v. Glen Alum Coal Co., 72 W. Va. 635, 78 S. E. 788, this court refused to set aside a verdict for $200, which a boy under fourteen years recovered for loss of half of one foot, though the court, had it been fixing the damages, would have fixed a greater amount. Plaintiff had failed to prove any pecuniary loss; so in the present case. No attempt was made here to prove any pecuniary loss. The jury fixed the amount and we can not disturb the verdict.
Por the foregoing reasons, the judgment will be reversed, and defendant’s demurrer to the evidence overruled; plaintiff’s motion to set aside the verdict will also be overruled, and judgment will be entered here upon the verdict.
Reversed; Judgment on the Verdict.