74 W. Va. 48 | W. Va. | 1914
A somewhat novel question arises on this writ of error, namely, whether the city is liable for the death of a boy 11 years old, occasioned by his having projected his head and shoulders under the upper part of an elevator, operated by a hotel proprietor in a sidewalk alleged to have been a public one, so that in its descent, it caught and crushed him. A verdict for the defendant was set aside by the court as being
The sidewalk in question, 7% or 8 feet wide and running along the side of a hotel and bordering a public street, was used by the public generally, and the hotel company had applied to the city for permission to install and operate the elevator in it and obtained such permission, but the title to the land covered by the sidewalk seems to be in the hotel company and there is no proof of a formal dedication thereof to the city for sidewalk purposes nor of any other act of recognition thereof as a public sidewalk by the city authorities. The street as surveyed and originally accepted by the city did not cover the strip, but the hotel company made it a sidewalk. Practically, if not legally, it added the strip to the public way, which the city confessedly controls as a highway. Its application to the Council for the permit impliedly admitted the sidewalk was a public one in the true sense of the term, one under city control, and the grant of it carried an implied assertion of such character by the city. Very slight corporate recognition of a way so laid out and used by the public suffices, and it may be implied as well as express. Campbell v. Elkins, 58 W. Va. 308; Parish v. Huntington, 57 W. Va. 286; Yates v. Grafton, 33 W. Va. 507; Boyd v. Woolwine, 40 W. Va. 282; Ball v. Cox, 29 W. Va. 407. That the hotel company owns the fee and constructed and maintains the sidewalk signifies little or nothing, since nearly all owners of property abutting on streets do that and not infrequently set back their fences and buildings so as to widen the street, thereby adding to a thing controled by the city or town. The sidewalk is undoubtedly a public one for the purposes of actions of this class.
But liability on the part of the city does not necessarily follow. Municipal corporations are by no means liable for all injuries occurring on their streets. Others have rights in them and some times by their negligence inflict injuries for which the cities are not liable. If vehicles or persons lawfully using the streets injure one another by collision or otherwise, the question of liability is one between them only with which the city has nothing to do. If a pedestrian should wilfully throw his body under or in front of an automobile, carriage or wagon and suffer consequent injury, he would have no
Though streets and sidewalks are public places, the public enjoyment thereof necessarily involves a limited right of temporary individual appropriation of the -use thereof. Two vehicles, animals or persons cannot occupy the same space at the same time. So the right of the abutter to make a special, peculiar and temporary use of the sidewalk or street in front of his property is exclusive, for the time being, just as is the occupancy of a given portion of the highway by a pedestrian or teamster, and the two classes of rights are of the same general nature and consistent with the theory of control by the public authorities.
The elevator in question was an instrumentality owned by the hotel company and used in the exercise of its rights, as an abutting owner, of receiving into the basement of the hotel baggage and other articles from the street and sending the same forth from the basement. "When not in actual use, it wrought no obstruction to the public enjoyment of the sidewalk nor any defect therein. When down its top was practically level with the sidewalk and constituted a safe and firm portion thereof. When it was raised to receive or discharge baggage or other articles, it appropriated for the pur
The maintenance and operation of the elevator was not dangerous to any person in the mere exercise of his right on the street. While it was raised for the receipt or discharge of a load or burden, the portion of the sidewalk through which it extended was in legitimate use and constituted no part of the portion then available to a pedestrian, just as so much of a street occupied by one traveler, team or vehicle is, for the moment, unavailable to another. The fatal injury resulted not from th&,ordinary use of the sidewalk or any defect in it, but from the thoughtless act of the boy in projecting his head under the machine, as in the case of one putting himself under or in the way of a vehicle in the street or under a skid used in handling freight or a barrel rolled from a wagon over skids to a sidewalk or' into the front door of a store.
It "follows from these conclusions that the trial court erred in setting aside the verdict. The order setting it aside will, therefore, be reversed and annulled and judgment for the defendant rendered here on the verdict.
Reversed and Rendered.