66 W. Va. 685 | W. Va. | 1910
A demurrer to evidence of consistent and uniform tendency, adduced by the plaintiff, in an action of trespass on the case, instituted in the circuit court of Marion county by John.H. Shriver against the county court of said county, to recover damages for injury to his person and property, caused by a defect in a highway, which it was the duty of the defendant to keep in repair, was overruled and a judgment rendered for $200.00, the amount of the conditional verdict, and the only real question, raised, on the writ of error, 'is whether recovery is barred by the plaintiff’s contributory negligence or assumption of risk.
Stating the facts, each in his own terms, the witnesses say there was a large mud hole, in said county, just outside of the City of Mannington, on a public road, called “The Pike.” It was deep and troublesome, and so nearly occupied the width of the road that there was not sufficient room on either side to permit vehicles to pass around it with safety and certainty, but there was almost sufficient room for that purpose on one side of it. The hole was from two to three feet deep and partially filled with mud and water. Some of the witnesses say the surface of the water was a foot below that of the adjacent ground, and that the mud and water were deep enough to go over the front axle of an ordinary wagon. The drop of a wagon from solid ground into this hole was almost perpendicular on one side. In other words, the bank was straight
The negligence of the county court, in permitting such a defect in its highway, is clear and undoubted. We have decisions which lay down a very liberal rule in favor of municipal corporations, exonerating them from negligence when a defect in a highway is not obviously dangerous, Waggener v. Point Pleasant, 42 W. Va. 798, Van Pelt v. Clarksburg, 42 W. Va. 218, Yeager v. Bluefield, 40 W. Va. 484; but the place, involved in this controversy, appears, from the evidence, to have been actually dangerous. Some of the witnesses say it was dangerous and all unite in a description of it which makes its dangerous character manifest. If the only question involved were that of the negligence of the county court, the judgment would be clearly right, and the action of the court, in overruling the demurrer to the evidence, entirely justifiable. We may go farther and say a contrary finding by the jury, if the evidence had been allowed to go to it, should have been set aside, if excepted to, and nothing else appeared in the case. From this it follows that contributory negligence on the part of the plaintiff is the only possible defense and, therefore, its existence
A citizen has the right to use a defective highway. No law forbids it nor does it work harm or injury to the public or any individual. It is equally clear that he has the choice of all roads leading to his destination and is not bound by any law or public duty, either to confine himself to any particular road or to adopt any particular mode of use. What road he shall use and how he shall use it are determined by his own will and considerations of private convenience and necessity. It is well also to note that in addition to all the public roads, he may, under certain circumstances, rightfully pass over private property. If, in traveling upon a highway, he finds it obviously dangerous at any point, he may pass around such a place over adjacent private property and even remove fences and destroy crops in doing so, provided he does not deviate farther from the road, nor do more injury to the private premises, than is actually necessary, and no other reasonably convenient public way is available. Highways are established for the service of the public. It is for the public good that the private owner of land must yield a portion of it for such service. Ways are a public necessity, and the law guarantees to every citizen a means of travel. Hence, if the usual track of a highway is foundrous or impassable and there is no other convenient public way the traveler may go extra viam, that is over adjacent private land. 2 Min. Ins. 19; 2 Blk. Comm. 36; Taylor v. Whitehead, 2 Doug. 749; Bullard v. Harrison, 2 M. & S. 387; Carrick v. Johnston, 26 Up. Can. 65; Campbell v. Race, 7 Cush. 408; Morey v. Fitzgerald, 56 Vt. 487; Williams v. Safford, 7 Barb. 309; Carey v. Rae, 58 Cal. 159. In addition to this, the power of the citizen to adapt his mode of use of any passable highway to the existing circumstances is matter of common knowledge and daily observation. In many sections of the country, the roads are not suitable, at times, for the use of certain vehicles or resort to certain methods of travel, because of snow and ice or mud or roughness of the road, occasioned by frost. Hnder these circumstances, the traveler discontinues
In the case of latent or hidden defects, not discoverable by the exercise of prudent observation, the non-application of the principle of preclusion in law, on the theory of contributory negligence, is both obvious and well settled by authority. Moore v. Huntington, 31 W. Va. 842; Campbell v. Elkins, 58 W. Va. 308. Neither does it apply when the defect, though not entirely hidden and undiscoverable, is so obscure that the traveler cannot be deemed, as a matter of law, to have had knowledge of if. or to have been bound to know it existed. To this class of cases belong Arthur v. Charleston and possibly others. Under such circumstances, the inquiry is submitted to the jury for determination. We think, too, that most of the cases 'relied upon in the brief, filed for the defendant in error, to sustain the judgment of the court below, belong to this class, although the principle declared in some of them is broader. While those of the former class assert that a traveler upon a highway,
We think the authorities and principles, adverted to, abundantly sustain the view that knowledge of a defect imposes upon the traveler the duty to adopt reasonable measures for his protection, when practicable, such as deviation from his course, variation of his manner of travel or use, and reasonable precautions against injury when the circumstances afford him no alternative. Though the public owes him the duty of providing-safe and convenient highways, lack of them does not justify recklessness on his part or disregard of his own safety and that of his property. Well settled general principles of law, uni
It will be our duty, under these principles, to affirm the judgment, unless the evidence makes it reasonably certain that there was a safe way by which the plaintiff could have reached his destination, without coming in contact with the mud hole in question, and without serious delay, and, further, that, if there was not such a way, he attempted to drive around the defect in a negligent manner. On the subject of a safe way by some other road, the evidence is in great confusion. The plaintiff and some other witnesses mention a way partly public and partly over private lots as being passable and safe, but they leave it wholly uncertain whether the mud hole could be avoided by using it. That way seems to come to the pike at Harden’s store where the defect was, the only advantage being avoidance of contact with part of the hole. The part that would be thus crossed may not have been as dangerous as the other, the end next to the corduroy, but the evidence does not say so. We are of the opinion, therefore, that it was for the jury to say whether the plaintiff unnecessarily assumed the risk incident to his attempt to go by way of the pike. Then it logically follows that it was the province of the jury to say whether, having the right to assume the risk, he drove carefully and prudently. His failure to get off the wagon, when attempting the difficult feat which resulted in his injury, is relied upon as an undisputed act of negligence, but we think that was a question for the jury, as it pertains to the manner of using the defective portion of
These conclusions result in an affirmance of the judgment.
Affirmed.